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House Hearing, 107TH Congress - China's Criminal Justice System
House Hearing, 107TH Congress - China's Criminal Justice System
House Hearing, 107TH Congress - China's Criminal Justice System
ROUNDTABLE
BEFORE THE
CONGRESSIONAL-EXECUTIVE
COMMISSION ON CHINA
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate House
MAX BAUCUS, Montana, Chairman DOUG BEREUTER, Nebraska, Co-Chairman
CARL LEVIN, Michigan JIM LEACH, Iowa
DIANNE FEINSTEIN, California DAVID DREIER, California
BYRON DORGAN, North Dakota FRANK WOLF, Virginia
EVAN BAYH, Indiana JOE PITTS, Pennsylvania
CHUCK HAGEL, Nebraska SANDER LEVIN, Michigan
BOB SMITH, New Hampshire MARCY KAPTUR, Ohio
SAM BROWNBACK, Kansas SHERROD BROWN, Ohio
TIM HUTCHINSON, Arkansas JIM DAVIS, Florida
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CONTENTS
Page
STATEMENTS
Cohen, Jerome A., professor, New York University School of Law, New York,
NY ......................................................................................................................... 1
Tanner, Murray Scot, professor, Western Michigan University, Kalamazoo,
MI .......................................................................................................................... 4
Hung, Veron Mei-Ying, associate, China Program, Carnegie Endowment for
International Peace, Washington, DC ................................................................ 7
Hecht, Jonathan, deputy director, China Law Center, Yale Law School, New
Haven, CT ............................................................................................................. 9
APPENDIX
PREPARED STATEMENTS
Cohen, Jerome A ...................................................................................................... 34
Tanner, Murray Scot ............................................................................................... 43
Hung, Veron Mei-Ying ............................................................................................. 52
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CHINAS CRIMINAL JUSTICE SYSTEM
CONGRESSIONAL-EXECUTIVE
COMMISSION ON CHINA,
Washington, DC.
The roundtable was convened, pursuant to notice, at 10:02 a.m.,
in room SD215, Dirksen Senate Office Building, Ira Wolf, (Staff
Director) presiding.
Also present: John Foarde, Deputy Staff Director; Susan Weld,
General Counsel for the Commission; Matt Tuchow, Office of Rep-
resentative Levin; Karin Finkler, Office of Representative Joe Pitts;
Susan OSullivan, for Lorne Craner, Assistant Secretary of State
for Democracy, Human Rights, and Labor.
Mr. WOLF. All right. I would like to welcome all of you to the
ninth staff-led issues roundtable of the Congressional-Executive
Commission on China. The tenth, and final roundtable before the
summer, will be an open forum on Monday, August 5 in this room
at 2:30 p.m. If you are interested in participating in that, please
check our Website in order to register.
Today we will look at the criminal justice system in China. We
have four panelists with us todayProfessor Jerome Cohen from
the New York University School of Law; Professor Murray Scot
Tanner from Western Michigan University; Dr. Veron Mei-Ying
Hung from the Carnegie Endowment for International Peace; and
Jonathan Hecht from the China Law Center at the Yale Law
School.
We appreciate, Jonathan, that this is your second time here, the
first being at one of the full Commission hearings earlier this year.
There is a wide breadth of experience on the panel today, many
yearsdecadesof research, of advocacy, of assistance to the de-
velopment of Chinas legal system.
Jerry, let us begin with you, please.
STATEMENT OF JEROME A. COHEN, PROFESSOR, NEW YORK
UNIVERSITY SCHOOL OF LAW, NEW YORK, NY
Mr. COHEN. I am delighted to have a chance to talk with the
Commission staff. In 1997 and 1998, Presidents Jiang Zemin and
Clinton made agreements that we should cooperate, the United
States and China, on legal reform. Finally, in the last couple of
years, we have witnessed significant cooperation.
I think this hearing on criminal law matters is very, very impor-
tant and I am happy to talk about the role of Chinas criminal de-
fense lawyers, if only to assure their American counterparts that
the post-9/11 government actions in this country have not yet sub-
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them, but the only facts they are seeing are the facts that are de-
veloped by the state.
So the current debates about evidence law are largely about how
to make the 1996 trial reforms work. One of the big areas of inter-
est has to do with witnesses and how to get witnesses to appear
in court. There are a lot of obstacles to this, some of them having
to do with traditional preferences against testifying, some of them
having to do with fear of retribution. But there are also some more
technical problems involved.
The Chinese courts have no process for compelling witnesses to
appear in court and they have no basis for providing compensation
for people who miss work, or have various expenses in connection
with coming to court.
Naturally, on the prosecution side, they are not very enthusiastic
about having witnesses appear in court because they prefer to have
the sure thing of their written statements.
While in most respects judges would like to see fact finding take
place in open court in the way that was foreseen in the 1996 revi-
sions, they themselves do not have a lot of experience doing it and
I think that they are not quite sure how they should oversee trials
that have live witnesses.
But there is a broad recognition of the need to get witnesses to
appear if fact finding is going to occur at trial, if these issues of
transparency are going to be addressed, and if the defense is going
to be given a chance to question the witnesses.
As I have said, there has been some local experimentation. The
Shanghai courts have adopted some rules about requiring key wit-
nesses to appear in all criminal cases. There was talk about enact-
ing a separate law on witnesses at the National Peoples Congress.
That now has been folded into this broader effort on evidence.
With respect to the right to defense, which was the other major
goal of the 1996 reforms, there is a lot of emphasis now on devel-
oping a system of discovery. This would compensate for the lack of
ability that defense lawyers have under the 1996 law to gather evi-
dence themselves, as well as improve their access to evidence that
is in the hands of the state.
There are, again, local experiments going on in Yantai, in
Shandong Province, with discovery. This is also now being focused
on as part of this broader evidence law.
Let me just quickly say one thing about some of the bigger issues
that are being considered. I think one of the interesting things
about what has happened with the evidence law, is that it has also
gone beyond the immediate problems with the 1996 revisions to ad-
dress a lot of the pre-trial problems in the criminal justice system.
This reflects a recognition that importing an adversarial process
into the trial stage alone is not sufficient if the entire pre-trial
stage is highly inquisitorial and police-dominated.
So, there is a lot of interest in various issues concerning the de-
fendant as the source of evidence, and this relates directly to what
Scot was talking about in terms of torture and the development of
rules on the right to silence and rules on exclusion of illegally gath-
ered evidence. I think that this is in some ways the most signifi-
cant area in terms of long-term development because of the prob-
lem of a police-dominated pre-trial system.
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officials to prosecute these cases and then to mete out the punish-
ments that the law prescribes.
Mr. COHEN. It is a problem in every society, including our own.
The police and so-called law enforcement authorities tend to protect
each other, and sometimes there are understandable reasons. We
struggle with that every day in New York City, in Washington, and
in lots of places. But it is worse, much worse, in China. I agree,
criminal punishment should be used against police who violate the
law.
Mr. TANNER. Pardon me. Since you raised the question of New
York City, every Chinese police scholar I have spoken with knows
the cases of Abner Louima in New York and Rodney King in Los
Angeles. They have all seen the King tape. One thing that they did
all take note of, is the very long prison sentence that was given to
Officer Volpe. A lot of them found that a very encouraging thing.
I would say, without even hinting at moral equivalence here, one
of the things that the United States can do that actually has an
impact on China, is when we punish these things very strongly,
this stuff gets noticed in China.
Mr. FOARDE. The exclusionary rule is very controversial, even
today. What sort of conversation is going on in legal circles in
China about it? Is it the same sort of issues that proponents and
opponents of the exclusionary rule in the United States have, or is
it different?
Mr. COHEN. Well, Jon can talk about this, of course. They have
been debating and going back and forth, settling sometimes on the
position of excluding illegally obtained confessions, but continuing
to admit illegally obtained physical evidence, because the physical
evidence does not lie. You can have less confidence in a confession.
But they are wavering on this. It is, understandably, a very dif-
ficult subject.
Mr. TANNER. I would point out that one of the first things they
do when they study an issue like this, is that they undertake a tre-
mendous translation of Western legal materials.
You can see the research materials that they compile of United
States law, and British, and Canadian, and all sorts of other sys-
tems. So, they address these things with a very strong under-
standing of how these issues have been battled in the United
States. For example, questions of good-faith exceptions.
Mr. FOARDE. We will come back to this, because other people
want to ask questions, I think.
Mr. WOLF. Matt Tuchow works for Congressman Sander Levin,
one of our Commissioners.
Mr. TUCHOW. Thanks. My question comes down to a more prac-
tical policy-oriented question for you about the Commissions work
and how to tackle the difficult issue of trying to influence the Chi-
nese. In listening to the witnesses today, I heard an encouragement
of technical assistance programs in the area of rule of law and ex-
change.
But I am wondering if the panelistsand maybe I will direct
this, first, to Professor Cohen, then if we have time, the others
could address what policy recommendations you feel the Commis-
sion should make to play a role in pressuring the Chinese or en-
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trying to bring their laws into compliance, and this is why they
have not ratified, and this is why they cannot predict when they
will be finished and when they will be able to ratify this.
I am wondering, going back to the question of what sort of out-
side pressure is affected and supports those inside China working
for change, whether you think this is something useful for us to
continue to pursue, keeping in mind that a lot of people ratified it
and do not comply with it, just your sense of the futility of that as
a human rights agenda item.
Mr. COHEN. Again, the United States sets a powerful example,
negative or positive. If we would complete our adherence to various
human rights agreements, we would be in a better posture, and
that would exert very influential pressure on China, and others.
Mr. HECHT. I think it should continue to be pursued, not with
any expectation that it is likely to actually happen any time soon.
But I think that China has accepted this as the benchmark. It has
not ratified it, but its government has signed it and its leadership
has said that it is committed to ultimately ratifying it. I think that
it should be held to that standard.
I think that if you look at a lot of the issues that we have been
talking about today, one of the sources of argumentation that re-
formers within China use again and again, is the international
standards.
To the extent that you have an inside/outside effort to both push
for formal ratification, use the standards in discussions at the Com-
mission on Human Rights, and at the same time provide an inter-
national backing to the effort within China to look at the covenants
as the standard that China should aspire to, I think that is a very
powerful and useful combination.
Ms. HUNG. Perhaps we have to ask the question, why did they
decide not to ratify the international covenant? Is it because there
is no strong will to do that? Or is it because they believe that the
system is not ready for them to ratify this international covenant
as they cannot satisfy all of the obligations?
If this is the case, then one issue we need to tackle is, how can
we help them to bring the legal system in line with these require-
ments? So that is the reason why we say human rights is a very
sensitive topic. But legal reform, I believe, is a fundamental solu-
tion to the human rights problem. This issue is not sensitive, so the
U.S. Government can offer some assistance in this regard.
Mr. TANNER. Ms. OSullivan, I think that pressure for Chinese
ratification of these international covenants, and to bring their own
system in line with that, is one of a wide variety of areas where
we should continue pressure on the Chinese.
We cannot expect that this is going to have a huge impact. I do
not see a lot of evidence that, internally within the system, that
this is regarded as a major lever, but it is one among several.
We have the historical example of the way that the Helsinki
agreements were used in Eastern Europe over a long period of
time, two decades, to create increasing pressure for that. I see peo-
ple in China who are thinking in the same sort of long-term fash-
ion to use this as one more lever to change the system.
Mr. COHEN. I think it is important that we not bilateralize the
question intellectually and in practice. I think Europeans are a
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whether they can learn from these experiences to improve the ad-
ministrative litigation system. So, I try to remain hopeful.
Mr. COHEN. The judicial review of administrative action is a star-
tling development in China that only got going in 1989, 1990. I am
not so pessimistic. I would not characterize it as a dead letter.
WTO is going to inject a little more life into that.
So far, one of the restrictions of Chinas administrative litigation
law is that the judges are not supposed to consider abstract regula-
tions, only concrete cases, and there are questions of what meaning
to ascribe to both of those terms.
But I think China will have to revise, soon, its administrative
litigation law to permit judges also to review abstract regulations,
and that could even justify a court that felt comfortable in doing
itand that is a big ifin saying that the re-education through
labor regulation decisions are not in accordance with Chinese law.
Ms. HUNG. I am very happy that Jerry just mentioned the WTO,
because I almost forgot. In fact, this is a big opportunity for the
Chinese Government to improve the system because under the
WTO agreement, China is required to ensure that their judicial re-
view system is independent.
Judicial review system means the administrative litigation sys-
tem in Chinas context. Because they are bound by this inter-
national treaty obligation, they have to improve it, otherwise they
have to face the consequences. So, eventually this will benefit the
entire legal system in China as well. Thanks.
Mr. HECHT. If I can just add one more comment on this. I think
both Jerry and Veron have talked a lot about the reform of the ad-
ministrative litigation law itself, and there is an active effort going
on to reform the administrative litigation law, and there is an aca-
demic group that is drafting, again, what they are calling a schol-
ars draft, but they are very tied in with the NPC and the actual
lawmakers.
But I think your point was specifically about detention and the
role of administrative litigation in dealing with detention. I think
this ties in somewhat with what Susan was saying. The problem
in the Chinese case has been this division between criminal deten-
tion and administrative detention.
Re-education through labor has been such a huge human rights
problem, precisely because it has continued to be viewed as an ad-
ministrative measure. And where the international standards real-
ly play an important role, is that it cuts through that to make clear
that what matters is not whether it is called criminal or called
administrative, but whether people are deprived of their liberty.
If people are deprived of their liberty, then there must be a prior
judicial decision and prior judicial process. Administrative litiga-
tion, even in the best of circumstances, only happens after the fact.
So I think, again, this is an area where a new conception needs
to be encouraged, away from this arbitrary division into criminal
and administrative, and toward more explicit reference to the inter-
national benchmark.
Mr. WOLF. Well, this has been, obviously, a very rich discussion.
We have a few more minutes, if there was something that was left
unsaid that you would like to mention. We can start with Jonathan
and work our way down. If there are things you think of, by the
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way, afterward that you wish you had said, we are happy to add
that into the record.
But, Jonathan, anything that you want to add, or sum up, what-
ever?
Mr. HECHT. Well, I think I have spoken a fair amount, actually.
Mr. WOLF. All right.
Veron.
Ms. HUNG. I want to add one remark that I have repeatedly
mentioned ever since I arrived in Washington. I believe that
United States assistance in legal reform in China bodes well for
United States-China relations because such dialog is beneficial to
the United States as well.
The topic is closely related to two issues that the American Gov-
ernment and also American citizens are most concerned about:
human rights, andWTO and trade with China.
Human rights is a highly sensitive issue in China. But legal re-
form, a fundamental solution to this problem, is not.
It is also beneficial to the United States if they help China to re-
form the legal system because we know that China cannot satisfy
all of the WTO obligations immediately. We can foresee that nu-
merous trade disputes between China and the United States will
occur. So, to reduce these conflicts, the United States should help
China bring its legal system in line with the WTO agreements.
Once the United States offers this kind of assistance, I believe
it can provide a springboard for improving United States-China re-
lations, and that can also help resolve other thorny issues, such as
Taiwan issues. This is my final note.
Mr. WOLF. Thanks.
Scot.
Mr. TANNER. Thank you.
One of the issues that was raised earlier was the way in which
we consider whether or not to expand our legal cooperation to in-
clude elements of the procuracy, and perhaps even people within
the public security system.
I sympathized greatly with one of the points that was made,
which is that it is very, very difficult to figure out exactly how to
section that sort of cooperation off to make sure that we are con-
tributing to improvement in the human rights situation in China
and not inadvertently simply making this repressive system better
and more efficient at being repressive.
There are a few things that I think we can do that are control-
lable that we might be able to think about for helping. Perhaps by
bringing some scholars and officials from these systems over to the
United States, some of the people who are going to be training
lower-level officials later on.
It has an enormous impact on them to see that the United States
is not the anarchic, crime-ridden society that a lot of them have
been told that it is, that crime can be fought without resorting to
torture.
The exchange of materials, things like translation or study mate-
rials, or things like that. These are things that Chinese universities
and training institutes are very starved for. So, that sort of thing
is worth considering.
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In a sad way, one thing that can be noted is that one area in
which Western countries and the Chinese police already have a
good deal of contactand it is not official contact, it is market con-
tactis that a significant number of companies in the west that
deal in police equipment already are involved in joint ventures in
China.
I have walked along Zhengyi Street in Beijing. There is a strip
of police goods stores. You can go in there, and they are perfectly
happy to tell you, oh, yes, this stun gun we made in a joint venture
with such-and-such a European country, or so on, and so forth. It
is tragic that that is, in some way, the best-developed aspect of con-
tact between the west and Chinese police.
I think we want to consider, with the procuracy and the public
security system, trying to think of controllable ways in the aca-
demic sphere that we might contribute to improving their training
so that they can fight crime without resorting to torture.
Mr. COHEN. I think structural reform has to be the ultimate pro-
posal. The Manchu Dynasty did more for structural reform of its
legal system than the Chinese Communist Party has done for its
system.
For example, no Manchu judge would be sent back to his local
area to work. Too many dangers of corruption, familistic ties, etc.
Any Manchu judge was only kept in place, wherever he was sent,
for 3 years for similar reasons. They moved them around.
The evil of local protectionism and the way it destroys any inde-
pendence and integrity for the Chinese court system is recognized
every year in the annual report of the president of the Chinese Su-
preme Court. But it is like Mark Twain said about the weather:
Everybody talks about it, but nobody does anything about it.
They have to do something about it.
Some enlightened future leaders have to realize how important
this is to Chinas system domestically, and increasingly, inter-
nationally. Chinese courts are weak. They need more professional
help. They do not address many questions in their judgments.
They sort of hide them under the table or just ignore them. And
they are under the coordination of the Communist Party Political
Legal Committee, and I think that should be ended. They should
be left to stand on their own professional feet. I think a lot of
things can be done.
A final point. We have not mentioned the importance of a free
media to rule of law. You cannot have, in any country or genuine
legal system, a rule of law system, and human rights protection un-
less the media are free to report on the abuses that occur in every
country.
Where would we be in our own society with respect to all of the
problems we have mentioned here if we did not have a free press
to ventilate these things to put the heat on legal administrators,
police, politicians, etc.?
The more China can develop freedom of the press and competent
legal specialists to reportthey have some legal investigative re-
portersthe more likely it is that the government will be stimu-
lated to stamp out corruption and create a genuine rule of law.
Mr. WOLF. Well, on behalf of Senator Baucus and Congressman
Bereuter, I want to thank you all very much for spending the
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morning with us today. This has been quite useful, and I think it
is a significant contribution to the annual report that the Commis-
sion will be completing in October. Thanks again.
[Whereupon, at 11:55 a.m., the hearing was concluded.]
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APPENDIX
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PREPARED STATEMENTS
One of the major innovations of the 1996 CPL is the right it confers on a detained
suspect, after the first interrogation by investigators or from the first day of deten-
tion, to select and meet a lawyer.4 In 1998 the revised CPL was authoritatively in-
terpreted to confer on the family the right to select a lawyer on behalf of the sus-
pect, so that a lawyer chosen by the suspect or his family is recognized as having
a right to enter the case and meet with the suspect.5 These rights are not contin-
gent upon the approval of the detaining authority, unless the case is determined to
involve state secrets. 6 Yet PRC police and prosecutors often deny lawyers access
to their clients on far-fetched claims of state secrets. For example, in the 1999 case
of detained Dickinson College librarian Song Yongyi, even after the prosecutor had
rejected the State Security Bureaus application for a formal arrest warrant on a
state secrets charge, the SSB continued to deny his lawyer an opportunity to meet
him.
1 The Interim Regulations of the Peoples Republic of China on Lawyers, article 1 (1980)
(passed by the Standing Committee of the National Peoples Congress on Aug. 26, 1980).
2 The Lawyers Law of the Peoples Republic of China was enacted by the National Peoples
Congress Standing Committee on May 15, 1996.
3 The Criminal Procedure Law of the Peoples Republic of China was promulgated on July 1,
1979 and revised on March 17, 1996.
4 CPL, article 96.
5 Supreme Peoples Court, Supreme Peoples Procuratorate, Ministry of Public Security, Min-
istry of State Security, Ministry of Justice and the National Peoples Congress Standing Com-
mittee Legal Affairs Working Committee: Provisions Concerning Several Issues in the Imple-
mentation of the Criminal Procedure Law, issued on January 19, 1998, article 10.
6 CPL, article 96.
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More often, the police simply do not transmit a detainees request for a lawyer
or delay or refuse access to a lawyer without giving any reason, as the Inner Mon-
golia Public Security Department did for months last year in the case of Connecticut
resident Liu Yaping and as the Beijing Public Security Bureau did for weeks after
the recent detention of well-known lawyer Zhang Jianzhong. If the frustrated crimi-
nal lawyer becomes too assertive in reciting the CPL provisions authorizing access
to his client, the police seldom hesitate to demonstrate who is boss, especially out-
side the major cities. In the Liu case, which is a blatant use of the criminal process
to settle a political struggle within the police itself, those in charge of the Inner
Mongolia PSD, tired of listening to the arguments of local counsel about the PSDs
illegal detention of Liu and its illegal denial of access to him, detained the lawyer
as well. She was released 28 hours later, but only after agreeing to sign a false
statement, and was so intimidated that she not only dropped the case but also said
that she would give up the practice of law for some less hazardous occupation! When
the suspects family retained a former prosecutor from Beijing to take up the case,
he too was detained by the PSD and released only after agreeing to board the next
flight out and not return. And when one of the police officers handling the case men-
tioned the provisions of the CPL to the Party Secretary of the Inner Mongolia Com-
munist Party Political-Legal Committee, which coordinates the work of police,
prosecutors and courts, the Secretary, who was one of the two major combatants in
the political struggle, reassured him by saying: I am the law in Inner Mongolia.
A more subtle technique frequently used by police and prosecutors to defeat a de-
fense lawyers entry into a case is simply to fail to comply with the requirement of
the CPL that, within 24 hours of detaining someone, the detaining authority must
notify the family or employer of the detainee of the detention,7 the reason therefore,
the identity of the detaining authority and the place of detention.8 If questioned
about their failure to issue the required notice, law enforcement officialsan iron-
ic name for those who so frequently violate their own nations lawshamelessly ex-
ploit an exception to the CPLs notification requirement by claiming that notification
would interfere with their investigation. 9 Yet in most cases the only reason that
notification might interfere with the investigation is that it might lead the family
or employer to retain counsel to meet the detainee in accordance with the CPL in
order to explain the nature of the offense suspected, relevant procedures and the
rights of the detainee.
It should be emphasized that the CPL does not require a lawyer to show the de-
taining authority a copy of the detention notice in order to get access to his client.
Yet police and prosecutors frequently take this position, and defense lawyers them-
selves will often reluctantly tell a would-be client that they cannot even accept the
case unless a copy of the detention notice is provided to them. This, of course, is
a ludicrous situation, for it denies the family and employer of the detainee their le-
gally guaranteed access to counsel at the outset of a case, a time when all they may
know is that the suspect is missing and is probably in the custody of an unknown
agency in an unknown place on an unknown charge. This is a crucial time when
laymen urgently need the help of a criminal lawyer, who has the knowledge and
contacts to enable them to find the detainee, so that the rights conferred by the CPL
upon detainee, family, employer and defense counsel can all begin to be imple-
mented. Moreover, if the detaining authority can defeat a lawyers legally guaran-
teed entry into a case by failing to give the legally guaranteed detention notice, it
has an added incentive to violate the CPLs notification requirements.
This farce has recently been acted out in the case of the Boston-based democracy
activist Yang Jianli. On April 26, 2002, Yang, a PRC national and U.S. permanent
resident with Ph.Ds from Harvard and Berkeley, after repeatedly being denied entry
to his homeland and even to Hong Kong, was detained in Chinas Yunnan Province
on suspicion of using someone elses passport to return to his country illegally. Al-
though 3 months have passed, no detention notice has yet been received by his fam-
ily, which has been frantically trying to obtain one, so that defense counsel can be-
latedly begin to assist him. This is surely not a case in which the detaining author-
ity can claim that issuance of a detention notice might interfere with its investiga-
tion by revealing to others the fact of Yangs detention, since the case has been
widely publicized abroad from day one and well-known in China via the internet,
e-mail, fax, phone and travelers. Furthermore, on May 10, 2002 the PRC Foreign
Ministry, after inquiries from foreign journalists and the U.S. Government, admit-
ted at a press conference that Yang was in custody, but it neglected to State in
whose custody and where.
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Letters from Yangs American wife to the Ministry of Foreign Affairs, the Ministry
of Public Security, the Ministry of National Security and their local agencies re-
questing notification of his detention have all gone unanswered, and, when she ar-
rived at Beijing Airport in May in an effort to call upon relevant agencies, her visa
was canceled and she was sent home on the plane that brought her. Yangs brother,
who lives in Shandong Province and is a loyal Communist Party member, neverthe-
less believes that the police should follow the countrys law. He has courageously
persisted in vainly knocking on the doors of Beijings various law enforcement agen-
cies as well as its criminal law firms, and in talking to any journalist who will lis-
ten, despite increasing police pressures upon him. The sad fact is that lawyers seem
unwilling to take on this politically sensitive case until a detention notice is re-
ceived. Recently one lawyer reportedly agreed to enter the case but changed his
mind by the time Yangs brother, whose phone is presumably tapped, reached his
office.
On July 12, 2002 the Ministry of Foreign Affairs, aware of the bad publicity gen-
erated by the illegal conduct of the police, informed the American Embassy in Bei-
jing that Yang is being detained by the Beijing Public Security Bureau and pre-
dicted that a detention notice would soon be issued. Two weeks later, the family is
still waiting.
Another frequently used technique to keep lawyers out of the detention/investiga-
tion process is for police or prosecutors to pretend that the suspect is not really de-
tained but merely being accommodatedforcibly to be sureat a guest house run
by the detaining agency. Sometimes, as in a current case I am not at liberty to iden-
tify, the family is informally told who the detaining authority is (in this case the
local branch of the State Security Bureau) and vaguely what the investigation is
about (student sexual activities) and the family is even required to pay 100 RMB
(roughly US$12) a day for room and board, which really adds insult to injury! Since
the case has not yet become a formal criminal matter, and might not become one,
the family has been advised against legalizing the situation by retaining a lawyer.
American University scholar Gao Zhan and her husband were secretly confined
in separate safe houses by the State Security Bureau for 3 weeks before pressure
from the American Embassy caused the PRC government to admit they were in de-
tention. Similar techniques are even used on Party members, who can be summoned
by the local Party discipline and inspection committee for investigation of matters
that later become criminal. The procedure is called shuanggui and can result in a
long period of incommunicado detention. And, of course, when ordinary people are
detained pending determination whether they should receive the administrative
punishment of reeducation through labor, which can result in 3 years in a labor
camp, no detention notice need be issued if the police regard the case as certain to
result in this non-criminal punishment rather than a formal criminal sanction.10
In some cases defense lawyers are forbidden or informally discouraged from as-
sisting a detainee by the local bureau of the Ministry of Justice. Local justice bu-
reaus used to exercise control over defense lawyers conduct in all cases. In recent
years, after the 1996 promulgation of the Lawyers Law and the revised CPL, they
have relaxed their grip in most cases. Yet old habits die hard, and in some parts
of China rules issued by local justice bureaus restrict defense lawyers to varying
extents in certain types of cases. In Beijing, for example, according to rules issued
in early 1999,11 without the advance approval of the Leading Group established by
the Municipal Justice Bureau, no defense lawyer may accept a case that involves
state security, foreigners or critical social influences.12 A special notice issued 6
months later, after the onset of the continuing campaign to suppress the Falungong,
makes clear that cases against Falungong followers are deemed to involve critical
social influences.13 This continuing control by the Beijing Judicial Bureau over the
entry of lawyers into politically sensitive cases may be the reason why Beijing law-
yers have refused to enter the Yang Jianli case until shown a copy of his detention
notice. They may be tacitly complying with a condition imposed by their masters.
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2. OBSTACLES DURING THE INVESTIGATION STAGE
The 1996 CPL and other laws authorize lawyers to perform two different func-
tions in the criminal process. During the investigation stage they may offer legal
counseling (falu zixun). During the prosecution and trial stages, they may offer de-
fense representation (daili bianhu). The differences between the two functions are
significant.
In view of the extreme difficulties that lawyers confront in entering the investiga-
tion stage, one might think that those who manage to do so might then be allowed
to render substantial service. Unfortunately, the revised CPL, while for the first
time granting lawyers access to detainees during investigation, nevertheless se-
verely restricts what they can do. At this stage, which usually lasts for many
months and sometimes even years, the lawyers may merely offer legal advice and
file a complaint or petition on behalf of the suspect. If the suspect has been formally
arrested, the lawyer may also apply for release under guarantee pending trial. The
lawyer also has the right to ask the investigating agency about the nature of the
alleged offense and to interview the suspect to understand the circumstances of the
case. However, the revised CPL ominously provides: Depending on the cir-
cumstances and necessities of the case, personnel from the investigating agency may
be present during the lawyers interview with the criminal suspect.14
Police and prosecutors have applied these provisions in ways that minimize the
opportunities for a lawyer to affect their investigation. In practice, lawyers are gen-
erally allowed only one brief meeting with the detainee at this stage. Usually these
meetings are closely monitored, and sometimes recorded, by investigators, so that
confidential communication is impossible. Lawyers are frequently not allowed to ask
their clients detailed questions about the case. When, for example, a lawyer was fi-
nally permitted to meet American citizen Fong Fuming last year, after he had been
in detention on bribery and state secrets charges for almost a year and after the
investigation was virtually concluded, no detailed discussion of his case proved pos-
sible, and counsel and client were required to talk through a glass partition by
means of microphones that broadcasted their every word to the nearby guards.
During the lengthy investigation period, lawyers are definitely not permitted to
undertake their own inquiry into the caseno interviewing of witnesses, no col-
lecting of other evidence, not even discussion with the detaining authority about the
inadequacy of its evidence. The complaints or petitions that lawyers are authorized
to file with investigating authorities usually fall upon deaf ears, even if based upon
clear violations of the CPLs procedures. Although police sometimes grant release
under guarantee pending trial for their own convenience, lawyers requests for such
release are rarely granted.
Yet there is nowhere else to go for a hearing concerning investigators arbitrary
actions, including torture. Although the prosecutors office is supposed to serve as
the watchdog of legality and protest the misconduct of not only the police but also
other prosecutors, it seldom offers relief, and it frequently is difficult for lawyers
even to obtain meetings with prosecutors or higher police officials in order to chal-
lenge investigators violations. China lacks any proceeding similar to habeas corpus,
so lawyers who try to persuade a court to hear a detainees grievance are told that
courts have no jurisdiction until after indictment, and the local judicial bureau will
also disclaim authority. Nor will a lawyer without powerful connections find assist-
ance at any level of peoples Congress or the Party political-legal committee that co-
ordinates the government law enforcement agencies or the Party discipline and in-
spection committee that deals with misconduct by Party members. In rare cases the
Chinese press reveals egregious police misconduct, but lawyers attuned to a govern-
ment that suppresses political freedoms seldom risk contact with journalists.
In China, as elsewhere, the investigation stage is the most crucial phase of the
criminal process. In the PRC, in law and even more so in practice, it is heavily
weighted against the suspect, so that even the ablest defense lawyers find the sys-
tem to be an exercise in frustration.
3. LIMITED ROLE DURING THE INDICTMENT STAGE
Under the revised CPL, defense counsel are supposed to come into their own once
the government investigation concludes and the case is sent to the prosecutors of-
fice together with a report recommending indictment. Prior to the 1996 reforms, de-
fense lawyers were not even admitted to a case at this stage but had to wait until
it had reached the court following indictment. The revised CPL requires the pros-
ecutors office, within 3 days of reviewing the case file, to inform the suspect of his
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right to ask a lawyer to defend him.15 In principle, the lawyer, now formally re-
ferred to as defense lawyer, has a right to conduct his own investigation of the
case and to read, excerpt and reproduce litigation documents and technical mate-
rials in the file, as well as to meet and correspond with the suspect in custody.16
The lawyer also has a right to present his views on the evidence and applicable law
to the reviewing prosecutor before the decision is made concerning indictment.17
Unfortunately, the provisions of the revised CPL that detail the newly granted
rights of the defense lawyer at this stage lend themselves to frustration of those
rights. The revised CPL fails to define the scope of the litigation documents in the
file to which the prosecutor must grant access, and it affirmatively restricts defense
counsels prospects for independently gathering evidence. The law provides that de-
fense counsel may only collect materials concerning the case from witnesses or other
persons or organizations with their consent, and may only obtain materials relating
to the case that are in possession of the victim, the victims close relatives and wit-
nesses proposed by the victim with the consent of the victim and the approval of
the prosecutors office.18
Not surprisingly, these detailed provisions governing the defense lawyers pre-in-
dictment role have been applied in ways that severely limit the possibility of mount-
ing an effective defense. Although some scholars hoped that the litigation docu-
ments that the prosecution is required to show defense counsel would include docu-
mentary evidence, physical evidence and the records of statements made by wit-
nesses, the victim and the suspect himself during the investigation stage, as well
as other evidence available to the prosecution, the term has been construed nar-
rowly by the nations chief prosecutors office, the Supreme Peoples Procuracy
(SPP), to exclude all such material.19 Prosecutors are required to grant access
merely to the formal documents in the file, such as copies of the detention and ar-
rest notices. In practice prosecutors have proved even stricter in withholding rel-
evant documents. Even the investigators summary of the case and recommendation
to indict, a most important formal document, is not usually revealed, although the
SPPs interpretation requires it to be.20 Of course defense counsel may apply to
see the evidence in the file and even to ask the prosecutors to help collect additional
evidence for the defense,21 but such requests seldom yield a positive response.
Moreover, defense counsel, lacking the power and prestige of police and prosecu-
tors, find it very difficult to obtain the consent and cooperation of witnesses, of vic-
tims and their families and of other people and organizations. Despite the fact that
witnesses do not usually appear in person to testify in criminal trials in China, they
do not even wish to be interviewed, and lawyers have no way to make them cooper-
ate. Thus the belated right of the defense lawyer to conduct an investigation often
turns out to be a sham.
These restrictions plainly limit the ability of the defense lawyer to persuade the
prosecution not to issue an indictment or to indict for fewer or lesser offenses. There
is no way the defense lawyer can know the case as well as the prosecution, espe-
cially in view of the fact that the indictment stage is usually brief, unlike the inves-
tigation stage, and prosecutors often place little stock in the defense lawyers views.
In any event it is frequently difficult for defense lawyers even to arrange a meeting
with the responsible prosecutors in order to discuss the matter. These realities help
to explain the fact that, year in year out, prosecutors approve over 98 percent of
investigators requests for indictment.22
Plea bargaining is neither authorized nor practiced in the PRC, at least in prin-
ciple. Of course, during the investigation stage interrogators frequently bargain with
the suspect, offering leniency for those who confess and severity for those who re-
sist, and in some cases defense lawyers do have an opportunity to exchange ideas
with prosecutors about their case, and perhaps even negotiate after a fashion. In-
deed, in some of the PRC criminal cases in which I have advised, our Chinese de-
fense counsel surely conducted conversations with prosecutors, sometimes at my
suggestion. They did not feel free to inform me of the occurrence or content of cer-
tain other meetings with prosecutors. The latter experience led me to believe that
in sensitive cases defense counsel may not be free agents.
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That defense lawyers in important cases are often not independent is confirmed
by the 1999 Rules of the Beijing Municipal Justice Bureau to which I previously re-
ferred.23 This is true not only in those cases for which approval of the Bureaus
Leading Group is required for entry into a case, but also in a broad variety of other
major cases. The Rules grant the Leading Group the power to listen to the requests
and reports of law firms in major cases (written reports that the firms are required
to make at every stage of the case),24 to decide the principles for handling major
cases and to coordinate the work connections between lawyers and relevant agen-
cies.25 If a written report causes the Leading Group to believe that a meeting is
necessary with the lawyer handling the case, it can summon him to report relevant
circumstances, which include the tactics adopted by the lawyer for handling the
case as well as the issues that need to be discussed.26 The Rules conclude by stat-
ing: The lawyer handling the case must prepare his tactics in accordance with the
decision made by the Leading Group after its discussion.27 If circumstances subse-
quently change, the lawyer is authorized to revise his defense arguments in accord-
ance with the new situation but must report the details to the Leading Group.28 It
would be surprising if the rules of at least some other local judicial bureaus were
very different in this respect.
4. TRIALS AND TRIBULATIONS
The frustrations of defense counsel do not diminish following indictment. The re-
vised CPL purported to transform the criminal trial into a meaningful experience
by precluding the court, prior to the judicial hearing, from reaching its judgment
on the basis of the file submitted by the prosecution. In order to implement this ob-
jective the revised CPL eliminated the previous practice whereby the prosecution
submitted its entire file to the court along with the indictment. Instead, it required
only that the prosecution submit a list of the evidence and witnesses to be presented
at the trial together with copies of major evidence and the litigation and technical
documents to which defense counsel had access at the indictment stage.29 This has
meant that defense counsel, instead of gaining access to the whole file prior to trial,
as in pre-1996 practice, now has the benefit of merely the skeletal prosecution file
called for by the revised CPL, which again is narrowly construed by prosecutors in
practice. Thus, in preparing for trial, defense lawyers have much less knowledge
about the nature of the prosecution case and much less material to work with than
under the old procedure, and this hinders their preparation greatly.
Nor does the revised trial procedure enhance the ability of defense counsel to
gather evidence on their own. Indeed, it constitutes another setback.30 Prior to 1996,
although the old CPL was silent on this question, both the national interim regula-
tion on lawyers and some local regulations emphasized the right of defense counsel
to investigate and collect evidence and the obligations of witnesses and other rel-
evant people and institutions to cooperate with those efforts. The revised CPL, as
the provisions cited in the previous section make clear, virtually invites witnesses
and others to reject the requests of defense counsel, who have no power to compel
their cooperation. Although the new law provides that defense lawyers may apply
for a court order to collect essential evidence on behalf of the defense,31 such appli-
cations tend to be as unsuccessful as similar requests made to the prosecutors of-
fice, and there is no way to obtain review of such rejections. Moreover, the orders
of Chinese courts are ignored to a shocking extent due to the absence of both appro-
priate punishments for contempt of those orders and an effective judicial enforce-
ment system.
Denied the opportunity to learn the prosecutors case in advance of trial and re-
stricted in his ability to build his own case prior to trial, defense counsel, to the
extent allowed by the judicial bureau, should at least be able to rely on the oppor-
tunity to puncture the prosecutions case at the trial. In China, as elsewhere, often
the best way to demolish the factual allegations underlying the indictment is for de-
fense counsel to cross-examine the prosecutions witnesses. Yet, prior to 1996, wit-
nesses were not required to appear in court. One of the most well-known reforms
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of the revised CPL,32 at least as its somewhat ambiguous language was clarified by
Supreme Court interpretation,33 is the requirement that generally witnesses must
testify in court, rather than have their pre-trial statements read out during the
trial, and that the opposing lawyers, as well as the judges, must have the right to
cross-examine the witnesses. In view of the previous practice, this was a change of
potentially historic proportions.
The problem is that this requirement has remained a dead letter. Except in a tiny
percentage of cases, witnesses still do not appear in Chinese criminal courts. No one
disputes that. The only debate is over whether, nationwide, as few as 1 percent or
as many as 10 percent of the trials might be graced by the presence of even a single
witness. So much for the right of cross-examination! Defense counsel inevitably con-
front difficulty in challenging the records of statements made outside their presence
to police and prosecutors, although, as with physical and documentary materials,
they seek to demonstrate discrepancies and other reasons to doubt the evidence.
Many other basic evidentiary challenges confront PRC trial lawyers. Is there a
presumption of the defendants innocence? If a confession or other evidence was ille-
gally obtained, should it be excluded from evidence? What are the elements of proof
required for conviction of various offenses and what standard of guilt should be ap-
plied by the court? Literally, scores of serious evidentiary issues arise, and many
Chinese prosecutors and judgesand many defense lawyersare ill-equipped to
deal with them, especially in the absence of detailed legislative guidance.
It is often difficult for informed foreign observers to gain access to PRC criminal
trials, especially since many important trials are still effectively closed, even to the
Chinese public, contrary to constitutional and legislative prescriptions that gen-
erally require public trials. My impression from studying criminal court judgments,
however, is that Chinese judges often do not address or respond in a reasoned man-
ner to many of the factual and legal arguments presented by defense counsel. Al-
though the Supreme Court has instructed the courts to State the reasons for their
judgments, their decisions are often cloaked in cursory generalities.
In this years Fong Fuming case, for example, many questions of law and evidence
went unanswered. What are the elements that must be proved to make out a brib-
ery conviction? Did extortion occur and, if so, should it have vitiated a bribery
charge? Was the court correct to exclude proffered evidence that the alleged extorter
had also sought to extort other businessmen? On what basis could the court con-
clude that commercial documents found in Fongs laptop were state secrets?
Should defense counsel and defendant have been allowed to read the documents in
question in order to be able to rebut the charge? Did the prosecutors and judges
themselves have an opportunity to read those documents or were they simply re-
quired to accept the decision of the national State Secrets Bureau? Did an opinion
of the State Secrets Bureau accompany its decision and, if so, should the defense
have been allowed an opportunity to review it, if not the documents themselves?
Similar questions relating to state secrets arose, but were not adequately ad-
dressed, in the 2001 prosecutions of scholars Li Shaomin and Gao Zhan on charges
of spying for Taiwan. What was the basis for classifying the internal essays and
analyses involved as state secrets, and did the accused have the knowledge and
intent required for conviction?
Political trials, of course, subject defense lawyers to their gravest challenges, par-
ticularly trials such as those that followed the Tiananmen tragedy of June 4, 1989
or that have dealt with efforts to organize independent political or Falungong activi-
ties. The lawyer for Muslim activist Rebiya Kadeer was reportedly not even allowed
to speak at her 1999 trial.34 Judges in such trials generally keep defendants and
their lawyers on a very short tether, as demonstrated by the 1998 prosecution of
famed democracy advocate Xu Wenli for helping to establish the China Democratic
Party. They frequently interrupt and even shout down efforts to refute the under-
lying basis for allegations such as endangering State security by acting with in-
tent to subvert State power, for which Xu received a thirteen-year prison sentence.
The Xu trial, like that of Li Shaomin, Gao Zhan and many others, was concluded
in half-a day!
Although able defense counsel can sometimes utilize the right of appeal to obtain
a more considered review of a deserving case, convicted defendants, who remain in
police detention pending conclusion of their case, are often persuaded not to appeal
by their jailers, their family or even their lawyers. If the defendant hopes for release
prior to completion of his sentence, the lawyer may be concerned that appeal may
32 CPL,article 47.
33 Supreme Peoples Court: Interpretation on Several Issues Regarding Implementation of the
PRC CPL, enacted on June 28, 1998, article 141.
34 World Brief, Detroit News, March 12, 2000, at 9.
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41
be interpreted as a sign of the defendants obstinacy and lead to longer prison time.
Moreover, knowing that trial courts frequently clear their decisions with the rel-
evant appellate court before pronouncing judgment, the lawyer may well believe
that pursuing an appeal would be throwing good money after bad. Yet, especially
in cases involving complex business transactions, certain lawyers have developed
the expertise and reputation for waging an impressive defense at the appellate level
and sometimes winning a reduced sentence, a retrial or acquittal on certain of the
charges. However, in a country where the final conviction rate is over 98 percent,
defense counsels do not harbor illusions.
Less can be done after a conviction has become legally effective. Defense lawyers
even have difficulty arranging a meeting with their client after the time for appeal
has expired or the appellate court has confirmed the judgment below. Yet one ad-
vantage of Chinas notoriously flexible criminal procedure is that, in cases of gross
injustice or where important evidence is newly discovered, the defense lawyer may
be able to find a post-conviction remedy by resort to adjudication supervision.35
It is possible that the Criminal Evidence Law that is currently being drafted by
respected Chinese specialists inside and outside PRC government circles will im-
prove the plight of defense lawyers in many respects, not only at the trial stage but
also from the very beginning of the criminal process. Contrary to its title, the new
legislation, which might be adopted within a few years, will probably not be strictly
limited to matters of evidence but will touch upon many aspects of criminal proce-
dure. Since the revised CPL is unlikely to be revised again in the near future, the
Criminal Evidence Law will be of profound importance to the administration of
criminal justice in China. If it closely resembles the comprehensive and impressive
Expert Draft being prepared by a group of Chinas leading academic specialists, and
if the new law should actually be implemented, the work of Chinas defense lawyers
will become somewhat less depressing.
5. THE SWORD OF DAMOCLES
Yet a new Evidence Law will do nothing to reduce the professional and personal
risks that Chinese defense lawyers confront every day. I have already mentioned in-
stances of police intimidation of lawyers who seek legally guaranteed access to de-
tained suspects and the more covert controls exercised by local judicial bureaus.
Failure to follow the instructions of a judicial bureau, which regulates the local
practice of law, can lead to loss of benefits and to administrative sanctions that in-
clude suspension of the lawyers professional license and even closing of his law
firm. Thus, not only the livelihood of the defense lawyer is at stake but also that
of his colleagues, which is undoubtedly why some judicial bureaus require a would-
be defender to discuss whether and how to deal with a criminal representation with
the other lawyers in his firm before deciding on a course of action.36
Defense lawyers whose efforts offend police, prosecutors or other power-holders
also run the risk that, in retaliation, criminal prosecution may be initiated against
them. Tax evasion has proved a readily available pretext for prosecution in a coun-
try where tax law and administration are in need of serious reform and non-compli-
ance is rife. Corruption is another favorite. Lawyers who work for state-owned law
firms have been convicted of embezzlement of public funds, and in a culture where,
despite legislative prohibitions, lawyers are still expected to wine and dine judges,
and where bribery is a huge problem, lawyers are easy targets for selective prosecu-
tion. They have also sometimes been convicted of criminal defamation for revealing
official misconduct, and a lawyer in Hunan Province was recently sentenced to 1
year in prison for leaking state secrets. Her only offense was to allow the family
of her client to see the court file in the case she was defending.37
The gravest threat to the personal security of defense lawyers comes from Article
306 of the Criminal Code, which specifically targets lawyers who induce or force
their clients or witnesses to change their testimony, forge statements or commit per-
jury. Any lawyer who advises his client to repudiate at trial a confession that may
have been coerced during the investigation stage risks of an Article 306 prosecution,
and, although this provision only became law in 1997, dozens of lawyers have re-
portedly been investigated and prosecuted under it. This is why lawyers openly call
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Article 306 the sword of Damocles and why conferences sponsored by the All
China Lawyers Association have expressed great concern about it as well as other
forms of intimidation.
The May 3, 2002 detention and subsequent arrest of Zhang Jianzhong, managing
partner of one of Chinas leading law firms and head of the Beijing Lawyers Associa-
tions committee for protecting lawyers, has had a chilling effect on the criminal de-
fense bar. Mr. Zhang, in addition to maintaining a flourishing business practice, has
represented some high-profile defendants in major corruption cases. It is feared that
his current investigation and virtually incommunicado confinement for alleged viola-
tion of Article 306for allegedly providing a false statement in a commercial trans-
action, an offense that in China would not normally warrant such severe treat-
mentmay be another instance of selective prosecution in retaliation for offending
a prominent political figure through vigorous criminal defense work.
6. CONCLUSION AND RECOMMENDATIONS
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in China for a defense lawyer, in addition to charging a substantial retainer for his
time, to arrange to be paid a very large fee, even by American standards, if success-
ful in gaining acquittal, reversal of the judgment below or a designated reduction
in sentence. The incentive to corruption provided by such an arrangement is obvi-
ous.
(2) Enhanced cooperation with Chinese lawyers of the kinds suggested above will
need to be supported by scholarly research of a comparative nature. Here is an im-
portant role for academic institutions in China, the United States and other coun-
tries. Chinas leaders and legal officials are increasingly aware of the value of accu-
rate knowledge of how their own legal system and that of other countries perform,
and they have recently welcomed a range of cooperative activities in law. Opportuni-
ties even for joint legal research between PRC and foreign scholars may be expand-
ing.
(3) This scholarly research and the cooperation of defense lawyers that it is de-
signed to support will require significantly increased funding from public inter-
national organizations, governments including our own and Chinas .and charitable
foundations. We should seize the moment, as Chairman Mao once said, but for a
purpose that he could not have foreseen.
TORTURE IN CHINA: CALLS FOR REFORM FROM WITHIN CHINAS LAW ENFORCEMENT
SYSTEM1
I would like to begin by expressing my sincere thanks to the Members of the Con-
gressional-Executive Commission on China for honouring me by with this invitation.
I would also like to thank the Commission staff, in particular Dr. Susan Roosevelt
Weld, for their kind help in inviting me and arranging my visit to the Commission.
The purpose of my testimony today is to focus some attention on the battle within
Chinas law enforcement community to confront the widespread and horrific use of
tortureespecially tortured confessionswithin the criminal justice system. The
prevalence of torture has been carefully documented by international human rights
monitoring organizationssuch as Amnesty International, Human Rights Watch,
the Lawyers Committee on Human Rightsas well as by our own State Depart-
ment and the U.N. Human Rights Commission. Members of this Commission have
heard testimony on this terrific problem from representatives of many of these orga-
nizations, and I as an individual analyst can add little to their excellent work.
Instead, my testimony today draws on my studies of Chinas police and internal
security system to focus on an important and unusual aspect of Chinas torture
problem: for the past half-dozen years, a growing number of officials and scholars
within Chinas law enforcement systemeven many affiliated with Chinas police
ministry (the Ministry of Public SecurityMPS) and its national prosecutors office
(The Supreme Peoples ProcuratorateSPP)have begun criticizing Chinas per-
vasive torture problem with increasing bluntness. A few years ago, some officials
within the procuracy for the first time publicized official statistics on cases of tor-
tureeven death by torture. Experts privately stress that these official numbers
still greatly understate the prevalence of torture. At the same time, these figures
and other characterizations clearly concede a pervasive, systemic, problem, and they
mark a significant advance in the halting, ambivalent struggle against torture in
China. These law enforcement officials and scholars are also openly debating policy
reforms designed to control torturein particular they are pushing for what I would
call professionalizing reforms of Chinas law enforcement system, as well as revi-
sions to Chinas criminal procedure laws which they believe will create disincentives
for officials to commit torturelegal revisions that, in many cases, draw explicitly
on U.S. and Western criminal procedure law. It is impossible to say for certain how
numerous these officials and analysts are, and difficult to evaluate their policy influ-
ence.
I cannot stress strongly enough that my purpose here today is not to argue the
brief that either Chinas top leadership or its law enforcement system are making
adequate progress on dealing with tortureemphatically, they are not. Nor am I
here to argue that this anti-torture cadre of officials and analysts is strong enough
1 This presentation includes sections revised and adapted from Murray Scot Tanner, Shack-
ling the Coercive State: Chinas Ambivalent Struggle Against Torture, Problems of Post-Com-
munism, Sept-Oct, 2000.
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44
for us to hope that this system can reform itself without a major system overhaul
and increased pressure from Chinese society and the international community.
Instead, my purpose is to discuss these important policy debates and efforts at
legal reform within China that I believe are important to those who must determine
U.S. human rights and legal policy toward China. A careful review of such reform
debates can help U.S. policymakers evaluate the initial signs of progress on the
problem of torture, the sources of current or future progress, and also the limita-
tions on such progress. Such analysis can also shed light on the degree to which
U.S. human rights policies and legal exchanges may be having a positive impact in
China.
As we evaluate the importance and limitations of such policy battles over legal
reform, we have to confront the painful distinction between the kinds of significant
improvements that may be possible within Chinas current authoritarian system,
and the more fundamental improvements that must, unfortunately, await a funda-
mental liberalization and democratization of that system. In my opinion there is no
question that the core of Chinas torture problem lies in her authoritarian political
system, and fundamental improvement of the torture problem will be impossible be-
fore China liberalizes and democratizes. A perusal of international human rights re-
ports, however, makes clear that there can be significant differences in levels of tor-
ture, law enforcement abuses, and police professionalism even among authoritarian
systems. Nevertheless, their fundamental shortcoming compared with democratic
systems is that authoritarian systems lack self-generating or self-sustaining social
and political institutions to fight torturemost importantly a free, competitive, ag-
gressively investigatory press, citizen-based human rights monitoring organizations,
independent, fair and accessible courts and prosecutors, and multi-party elections
as an implicit threat to unresponsive leaders. Authoritarian systems such as China
cannot even make significant progress against torture unless their top leaderships
undertake sustained, detailed monitoring and punishment of local law enforcement
who commit the crime. In many authoritarian countriesin particular Chinathe
leaderships commitment to fighting torture is, at best, instrumental and sporadic
rather than fundamental and enduring. Thus, when competing political demands
cause top-level pressure and monitoring to slacken, torture inevitably reasserts
itself.
We cannot expect fundamental, self-generating and self-sustaining progress on
torture in China until China constructs the package of liberal-democratic social, po-
litical, and legal institutions to oversee, expose, and compel the punishment of tor-
turers. But even without waiting for, or weakening our commitment to, full democ-
ratization, Western countries can and must expect, promote and support significant
improvement in Chinas torture record through reform of the existing system. Stud-
ies of torture in many societies, including China, demonstrate clearly that torture
is also greatly exacerbated by a severe lack of law enforcement professionalism
including compliant judges lacking even rudimentary commitment to rule by law
and legal procedure, rules of evidence that create incentives for interrogators to ob-
tain tortured confessions, and weakly trained police and prosecutors who lack the
professional ability to solve non-political criminal cases using legally gathered evi-
dence. Such rudimentary problems of unprofessionalism are, at least in part, distin-
guishable from whether the system is democratic or non-democratic. Sadly, the con-
tinued disturbing human rights records in such fledgling democracies as Russia,
Brazil, South Africa, Indonesia, and elsewhere demonstrate that where law enforce-
ment organs suffer from severe unprofessionalism, not even democratization and
freedom of the press can alleviate torture and other abusesat least not for a very
long time. Fighting torture is a long-term struggle that must be fought out on many
fronts.
Therefore, I believe that recent calls from within Chinas legal and law enforce-
ment communities for reining-in torture can best be understood against the back-
drop of a top leadershipJiang Zemins leadershipwhose efforts to deal with tor-
ture and legal abuses have at best been sporadic, irregular, instrumental, and
marked by profound ambivalence.2 Under Jiang, the leadership has ordered occa-
sional short-lived crackdowns on police abuses,3 but only as one part of a broader
strategy to use rule by law to revive its threatened legitimacy, stabilize its author-
itarian regime, and drive a wedge between average citizens and the politically ac-
2 In its most recent report on torture in China, Amnesty International described these leader-
ship efforts as betraying an attitude of indifference, and I would not dispute that characteriza-
tion.
3 Perhaps the most prominent such crackdown on torture, abuses, and corruption within law
enforcement organs occurred between late 1997 and Fall 1998, as part of the so-called Edu-
cation and Rectification campaign.
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45
tive. Jiangs leadership is offering citizens a legal bargain to demobilize them po-
litically saying, in effect, that if the vast majority of citizens stay out of politics, es-
chew officially suspect religious groups, and do not commit crime, the Party and
government will try to guarantee them an orderly, relatively low crime society cou-
pled with gradually expanding legal protection against abuses by law enforcement
officials. Jiang and his allies are, in effect, gambling that moderate legal reforms
can prolong the current regime, and will not instead become a stepping stone to-
ward expanded notions of political and legal rights and democratization.
But such a social bargain is fraught with political dilemmas. First, most reforms
that could help establish self-sustaining institutional checks on torture risk under-
mining the Partys hold on power and its control over law enforcement and the
press. Second, any serious effort to rein in torture risks undermining the capacity
of police and prosecutors to fight crime and maintain adequate law and order
the other cornerstone of the rule by law legitimacy strategy. As in other authori-
tarian systems, decades of being protected by an undemocratic government have
rendered Chinas law enforcement departments, quite simply, rather weak in mod-
ern criminal investigation skills and excessively reliant upon compliant courts, co-
erced confessions, and a culture of informants to obtain convictions. Jiangs legal re-
form strategy requires cracking down on, reforming, and undermining the morale
of, the very law enforcement organs on which he relies to control crime, suppress
dissent, and contain suspect religious groups. It is these political and institutional
dilemmas that give Chinese efforts to rein-in torture their start-stop, highly am-
bivalent character.
Still, this backdrop of ambivalent leadership commitment over the past half dozen
years has opened enough of a window to encourage unprecedently frank policy dis-
cussion about torture within the law enforcement community. But because of this
ambivalence, this debate has also, emphatically, not been held for the benefit or con-
sumption of foreignerseven educated Chinese only get to glimpse it through news-
paper expose articles on torture. Clearly fearing that foreign press and governments
will simply treat these discussions as an admission of Chinas embarrassing torture
record rather than a harbinger of progress, these discussions have largely been lim-
ited to internal circulation (confidential) reports and documents, and unclassified
journals, newspapers, and books that are rarely read by anyone outside of the crimi-
nal justice field.4 In stark contrast to such heavy-handed propaganda exercises as
Chinas various White Papers on legal and rights issues, the policy discussion on
torture has largely been kept out of those official media most heavily monitored by
foreigners.5 In assessing these policy discussions, it is worth noting that these law
enforcement officials and analysts have been criticizing Chinas extensive use of tor-
ture and debating how best to rein it in even when they had least reason to believe
that foreignor even domesticcritics were watching.
NEW ADMISSIONS ON THE PREVALENCE OF TORTURE
Among the most significant steps forward has been the growing willingness of
legal officials to acknowledgesometimes in publicthe widespread use of torture.
In sharp contrast to the denials and linguistic dodges Foreign Ministry spokes-
persons employ when asked about torture cases, senior Chinese police, procura-
torial, and legal officials and scholars have become increasingly Frank in acknowl-
edging the extent of the problem.6
4 An excellent example would be the large number of articles on fighting torture in Gongan
Yanjiu (English Titles: Public Security Studies or Policing Studies), the chief theoretical and pol-
icy journal of the Ministry of Public Security and of its Number Four Research Institute. Despite
having converted to open circulation over a decade ago, and containing rich materials on Chinas
police, the magazine is rarely read in China and almost never cited in international human
rights monitoring reports or foreign analyses of Chinas legal system. The major exception to
this relative anonymity has been the prominent role played by Fazhi Ribao (Legal System
Daily), the highly respected and rather widely read flagship paper of the Partys top legal policy
organ, the Central Political-Legal Committee. In recent years few papers have more regularly
published investigatory articles on law enforcement abuses of all types, including torture.
5 The mass media most heavily monitored by foreigners would include Peoples Daily, China
Daily, the New China [Xinhua] News Service English reports, Radio Beijing International,
China Central Television [CCTV], and so on.
6 See, for example, the Foreign Ministrys dodgy response to the Canadian Broadcasting Cor-
porations (CBC) filming of Shanghai police beating several suspects: Agence France Presse
(AFP) May 21, 1998; Ta Kung Pao, May 25, 1998, pg. A2; Kyodo News Service May 21, 1998,
in BBC Summary of World Broadcasts (BBCSWB) May 23, 1998. By contrast, during the same
period, Fazhi Ribao (Legal System Daily) and Renmin Gongan Bao (Peoples Public Security
Daily) were publishing numerous expose articles on police and procuratorial torture as part of
Continued
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In recent interviews and publications, officials and analysts have characterized
the torture problem as very serious, rather common, especially prominent, a
long-persistent, chronic disease among public security and other judicial organs 7
and even claimed that the vast majority (jueda duoshu) of peoples police who han-
dle cases believe torture is a fast and effective interrogation technique, and hence
tortured confession has existed for a long time on a large scale. 8 Professor Cui
Min of Chinas national police collegethe Chinese Peoples Public Security Univer-
sityone of the legal systems most persistent critics of torturehas written that
using very large amounts of evidence derived from torture and other illegal means
(especially the accused persons confession) remains, as before, a principal basis for
proving cases. 9 Without question, Minister of Public Security Jia Chunwang pro-
vided the most authoritative characterization when he told a summer 1998 public
security conference that police torture and related abuses was one of the two most
common complaints he heard about in letters from ordinary citizens.10
This willingness to concede the pervasive of torture was further confirmed when
the Supreme Peoples Procuratorate published an open circulation volume in late
1997 entitled The Crime of Tortured Confession (Xingxun Bigong Zui). This case-
book for procurators described hundreds of real torture cases with a sort of dis-
passionate but gut-wrenching detail that was reminiscent of Amnesty International
reports. The book also included Chinas first openly published official statistics on
criminal cases of tortured confessionreporting an average of 364 cases per year
between 1979 and 1989, upward of 400 cases per year for most years in the 1990s,
and the striking admission that 241 persons had been tortured to death over the
2-year period 19931994.11
Numerous Chinese experts insist that for both political reasons and statistical
shortcomings, these data greatly understate the real occurrence of torture, though
they note that publishing the statistics at all was a major change in policy.12 Also,
as Amnesty International and others have pointed out, such official reports and sta-
tistics focus almost exclusively on torture as a source of confessionsnot as a form
of extra-judicial punishment or abuse or intimidation. Finally, they almost never
mention torture of political detainees, religious activists, or ethnic minorities.
the Education and Rectification campaign. See Tanner, Chinas Ambivalent Struggle Against
Torture.
7 These phrases come from interviews with the author and various articles. See, for example,
Xu Deming, Gongan Minjing Zhiwu Fanzui de Tedian Yuanyin de Duice (Crimes Committed
by Public Security Peoples Police in Performance of their Duties, their Special Characteristics,
Origins, and Policies to Deal with Them), Gongan Yanjiu (Public Security Studies), 1998, Issue
4, pp. 7577.
8 Du Jingji, Qianlun Xingxun Bigong de Chansheng ji qi Duice (A Superficial Discussion of
the Sources of Tortured Confession and Policies to Deal with it), in Wang Huaixu, ed., Zhencha
Xunwen Yanjiu yu Yingyong (Research and Practise of Investigation and Interrogation), (Bei-
jing, China Peoples Public Security University Press, 1998), pp. 372376, esp. pg. 374.
9 Cui Min, Zhongguo Xingshi Susongfa de Xin Fazhan: Xingshi Susongfa Xiugai Yantao de
Quanmian Huigu (New Progress in Chinas Criminal Procedure Law: A Comprehensive Look
Back at Research and Discussions of Reforming Chinas Criminal Procedure Law), (Beijing,
China Peoples Public Security University Press, 1996), pg. 216. Because of Cuis prominent role
in revising the Criminal Procedure Law, this unclassified source is rather widely read in Chinas
legal community.
10 Jia told the meeting:
The problem of forced confessionsin a number of areas, it absolutely exists. Recently, while
I was visiting basic level public security organs, talking with university student trainees, some
of them told me that they themselves had beaten people. Of all the letters I have received from
the masses since coming to the MPS, two types are most common. The first says that in some
area, the social order is bad and the criminals are ferocious. The second type says that the peo-
ples police are breaking the law as they enforce the law. By committing forced confessions, they
have turned someone who has committed no crime into a criminal, or turned someone who com-
mitted a minor violation into a serious criminal violator, and harmed the masses terribly. See
Minister Jia Chunwangs Speech to the Dalian conference on building the Public Security
corps, June 12, 1988, in Gongan Duiwu Zhengguihua Jianshe Lilun yu Shijian (Beijing, China
Peoples Public Security University Press, 1998), pg. 7.
11 Xingxun Bigong Zui, pg. 9.
12 Owing to the narrow definition of tortured confession in Chinese law, these statistics only
include torture aimed at extorting confessions (thereby excluding wanton assaults by the police)
and only torture committed by judicial officials or those deputized by them (thereby excluding
civilian legal activists, who according to these sources are a major part of the problem). Annual
fluctuations reflect not only changing actual rates of these crimes, but also the changing willing-
ness of victims to come forward, and of procurators to prosecute these sensitive cases. Finally,
the fact that the 19931994 statistics on persons tortured to death (241) represents such an
enormous percentage of all torture cases (between a fourth and a third) suggests strongly that
most torture cases do not even get reported or prosecuted unless they result death or detectable
serious injury.
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Table One: Official Torture Statistics (19791996)
Year(s) Tortured Confession Cases Formally Established Persons Tortured to Death
Since about 1995, law enforcement analysts have also largely ceased blaming Chi-
nas ancient feudal culture and residual leftist influence from the Cultural Revolu-
tion (196676) for current torture problems and conceded that the real reasons must
lie in the failures of Chinas post-Mao law enforcement system. These officials are
also gradually conceding that the traditional oversight mechanisms the State can
most easily controlideological education, internal police oversight, and procura-
torial oversightare grossly inadequate to Chinas pervasive torture problem.
To check law enforcement abuses China, like other Leninist systems, has histori-
cally relied almost exclusively on ideological-educational campaigns to inculcate
norms, and oversight by various Party and government organs internal to local pub-
lic security departments. Every department down to the county level has within
Party committees and departments for discipline inspection, political work, per-
sonnel, State supervision, auditing, and the new oversight policeeach one
charged with internal oversight of some aspect of discipline and/or legality. There
is, simply put, no shortage of internal oversight organs. Nevertheless, as these
sources make clear, China is a textbook case of how internal police oversight can
fail when local police leaders are more concerned with raising case-cracking rates
than fighting abuses.
China primarily relies on the old Soviet institution of the Procuracy to augment
internal with external oversight. But law enforcement sources stress that the Procu-
racy plays a contradictory triple roleprosecuting criminal cases, overseeing police
investigatory procedure, and investigating government corruption casesthat often
results in it paying more attention to convicting criminals than aggressively over-
seeing the police. Indeed, much torture is committed by procurators themselves.
Moreover, Chinese legal organs are far more decentralized than their old Soviet
counterparts. Local Communist Party Committeesnot superior-level law enforce-
ment officialshave primary control over local police, procurators, and judges. Thus,
when the Party has promoted greater legality, procurators sometimes oversee po-
lice more aggressively. But during Party-led anti-crime campaigns, procurators often
deliberately abdicate their oversight role or risk being criticized for obstruc-
tionism. 13
With this lack of self-sustaining oversight institutions, it is little wonder that
since 1990, the leadership has launched several short-lived official crackdowns on
torture, all of which sooner lost steam or were overwhelmed by renewed fears of
crime waves.
In response, many analysts have put forward new proposals aim at greater
professionalization and training for police and procurators, reforming legal incentive
structures (especially rules of evidence), increased publicity for torture crimes and
their punishment, and encouraging lawsuits by torture victims.
GREATER PROFESSIONALIZATION
13 For analysis of the procuracy and how its role can be undermined by campaigns, see Murray
Scot Tanner, State Coercion and the Balance of Awe: The 19831986 Stern Blows Anti-Crime
Campaign, forthcoming in The China Journal, July 2000; also Harold M. Tanner, Strike Hard!
Anti-Crime Campaigns and Chinese Criminal Justice, 19791985 (Ithaca, N.Y., Cornell Univer-
sity East Asia Series, Number 104, 1999), esp. pp. 4247.
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48
sonnel quality are all weakest. Many professionalizers lay considerable blame on
local Communist Party leaders for forcing police to hire unqualified cronies, using
the police as a private army, or funneling scarce budgetary revenues away from
law enforcement training and pay into economically profitable ventures. Most local-
level police get little or no training in crime scene management, fingerprinting,
blood-typing, and rudimentary forensic and investigatory skills. One MPS document
claims that A few Peoples Police . . . treat beating people as their principal case-
cracking technique. 14 Advocates of professionalism also argue that many abuses
are committed by the large array of untrained, non-professional citizen security ac-
tivists, semi-private security guards, and contract police officers on whom regular
Public Security officials rely to assist in protecting work units and maintaining so-
cial order.
Many other law enforcement analysts admit, however, that many professional
problems are attitudinalmany if not most police officers simply dont believe that
torture is wrong, or at least that it leads to much more good than harm. According
to another police official, more than a few local police captains believe that during
interrogations . . . as long as one doesnt beat the person to death or until they are
crippled, thats all right. 15 Cui Min of the Public Security University has recounted
innumerable arguments he has had with local police who bluntly insist that torture
is necessary and appropriate for law enforcement.16
Police and procuratorial experts agree with the judgment of international human
rights monitors that during strike hard anti-crime campaigns professionalism is
further undermined, causing torture cases to spike. Local Communist Party leaders,
who are also under evaluated by their superiors on the State of local social order,
turn up the pressure on local police to solve cases quickly. According to one police
official, many officers find it hard to resist this fast and effective interrogation
technique. 17
In recent years, professionalization advocates have stressed expanding police
training programs, increasing equipment purchases, raising hiring requirements,
and giving police departments (vs. local CCP committees) tighter control over their
personnel. Beginning in 1997 the MPS undertook a long-term effort to profes-
sionalize criminal investigation that would eventually remove local police station of-
ficers from investigatory work, while building a nationwide network of professional
investigators. The MPSs chief of criminal investigation, however, has shown little
optimism that such a large professional corps could be trained in the near future.
CREATING LEGAL AND INSTITUTIONAL DISINCENTIVES
Public security and procuratorial anti-torture advocates also contend that flaws in
Chinas Criminal Law (CL) and Criminal Procedure Law (CPL)both originally
drafted in 1979create powerful incentives for investigators to obtain confessions
by torture. They seized on the efforts to revise both of these laws in 199697,
launching a debate on how best to discourage torture. The reforms they rec-
ommendedand are still promotingto change police and procuratorial incentives
borrow strikingly from U.S. legal concepts and incentive structures.
They have been especially critical of the lack of an unambiguous presumption of
innocence (wuzui tuiding) and the lack of a right to remain silent or avoid self-
incrimination (chenmo quan). Despite strong efforts incorporate these presumptions,
the new CPL ultimately moved only obliquely toward requiring the State to present
an evidentiary proof of guilt beyond a mere confession.18 But CPL Article 93 still
tempts interrogators to press hard for confessions by requiring the criminal suspect
to answer the investigators questions truthfully. 19 One police scholar complained
that since the law encourages interrogators to believe they are dealing with guilty
parties who have no right to withhold incriminating information, it clearly creates
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a pretext for investigators to engage in torture. 20 These advocates have clearly not
given up, however, and in recent months the Public Security University press has
brought forward volumes of essays by law enforcement scholars continuing to press
for a clear right to remain silent. On this issue, however, there appears to be a fair-
ly clear line of disagreement between the police scholarly community and the Min-
istry of Public Security itself.
Despite Chinas longstanding insistence that rights are unique to each countries
special socio-economic and cultural conditions, some police scholars have recently
claimed that the numerous international legal treaties China has recently signed
obligate her to incorporate these fundamental international principles of criminal
procedure, in her domestic CL and CPL.21
The central focus of these efforts to reform the legal-incentive structure has been
their effort to adopt an exclusionary rule for illegally obtained evidencein par-
ticular tortured confessions. Cui Min of the Public Security University, with typical
bluntness, argues that so long as tortured confessions remain admissible for convic-
tions, the clause extorting confessions by torture is strictly forbidden essentially
exists in name only. 22 Relatedly, many law enforcement scholars continue to sup-
port at least some modified version of a U.S.-style fruit of the poisoned tree rule
(du shu zhi guo) barring the use of physical, documentary, and other evidence ob-
tained as a result of a tortured confession. This rule has produced an enormous
range of opinion among law enforcement scholars, from those favouring completely
chopping down the tree and discarding the fruit (kan shu qi guo) to those who
would chop down the tree but savour its fruit (kan shu shi guo), to a full range
of compromise positions in between.23
Although reformers failed in their efforts to enshrine these principals in the re-
vised CPL, they continue to use various means to write these rules into law. It ap-
pears that reform advocates within the Supreme Peoples Court and Supreme Peo-
ples Procuratorate have tried to use their power to draft implementing regulations
for the CPL to cautiously advance a fledgling exclusionary rule without a poisoned
fruit exclusion. The SPCs June 29, 1998 interpretation on the new CPL states
that illegally obtained witness and defendant testimony may not be used to decide
a case.24 Likewise, the SPP, in its January 30, 1997 CPL Implementing Regulations,
reportedly ordered that tortured confessions cannot serve as evidence of guilt of a
crime. The SPP further reports it is experimenting with a Miranda-style warning
to suspects.25
On January 2, 2001, the Supreme Peoples Procuratorates latest (of many) con-
fidential circulars condemning recent torture cases reflected these new proposals. It
criticized what it called the outmoded traditional idea of a presumption of guilt,
and the blind worship of confessions as evidence. The directive also called on local
procurators to clarify the principle of excluding illegal evidence, and cited article
265 of its national criminal procedure regulations for procurators to the effect that
confessions or victim or witness testimony obtained by torture may not be used as
the basis for prosecuting criminals.26
Current efforts among these reform advocates appear to center of the drafting of
an Evidence Law (Zhengju Fa) that would attempt to unify standards of admis-
sible evidence among Chinas major procedural codes (Civil, Criminal, and Adminis-
20 Zhou Guojun, Yanjin Xingxun Bigong de Sikao, (Pondering the Prohibition of Extorting
Confessions), Gongan Yanjiu (Public Security Studies), 1999, Number 1, pp. 2629, 43.
21 Zhou Guojun, pp. 2728.
22 Cui Min, pg. 216. Professor Cui was a key participant in drafting the revised Criminal Pro-
cedure Law.
23 This complicated debate is summarized in some detail in Tanner, Chinas Ambivalent
Struggle Against Torture, pp. 2124.
24 Zhou Guojun (pp. 2943) indicates the SPC first issued this directive in its March 21, 1994
regulations on investigatory procedure. This document is unavailable to the author. The June
1998 Supreme Peoples Court Explanation of Several Questions of Carrying Out the Peoples
Republic of China Criminal Procedure Law, Court Interpretation No. 23 [1998], Article 61,
states It is strictly forbidden to use illegal methods to collect evidence. Any witness testimony,
defendant statement, or defendant confession which, through investigation, is confirmed to be
obtained by using torture, threats, inducements, deception, or other illegal methods, cannot
serve as a basis for deciding a case. in Gong, Jian, Fa Jiguan Zhixing Xingfa Xingshi Susongfa
Xin Guiding (Beijing, Qunzhong Chubanshe, 1999) pg. 428.
25 Zhou Guojun, pg. 2943; Beijing Xinhua English, Jan. 5, 1999, translated by FBIS-CHI,
Jan. 5, 1999.
26 Zuigao Renmin Jianchayuan guanyu Yanjin jiang xingxun bigong huoqu de fanzui
xianyiren gongshu zuo wei dingan yiju de tongzhi (Circular of the Supreme Peoples
Procuratorate on Using Crime Suspects Confessions Obtained Through Torture as the Basis for
Deciding Cases), January 2, 2001, in Ministry of Public Security, comp., Gongan Jiguan Zhifa
Xuzhi, 2001 edition, pp. 526528.
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trative). Advocates want the draft law to clearly enshrine an exclusionary ruleat
least for tortured confessionsalthough support for a relatively absolute fruit of
the poisoned tree exclusion seems to have waned as China faces corruption, orga-
nized crime, and drug-trafficking cases that it finds harder to crack. Such a draft
is not expected to be ready for National Peoples Congress debate for at least one
to 2 years. Participants in drafting the law indicate their proposals still face opposi-
tion from the MPS and local police who fear that Chinas police are simply incapable
of maintaining proper social order under stricter rules of legal procedure.27
DEEP AMBIVALENCE ABOUT PUBLICITY AND LAWSUITS
Several law enforcement analysts privately laud the great increase in publicity
given to torture cases and the punishment of torturers. Publicizing the disturbing
details of several torture cases, and spotlighting the punishment of guilty officers
communicates leadership disapproval far more dramatically than any internal ad-
ministrative document. It can also force officers to carefully recalculate the costs
and risks of getting caught, thereby establishing powerful norms against the prac-
tice. In recent years, the cultivation of a corps of reasonably aggressive investiga-
tive reporters among the official press has helped extend the governments moni-
toring capacity and help it crack through local cover-ups of torture cases. These re-
porters have become popular, even heroic, symbols for the government, and citizens
often compete to entice them to come report on local abuses as a way of attracting
top leaders attention.
But for the regime leadership, which fears for its stability, large-scale publicity
of police abuses also risks undermining morale among the repressive forces that
they rely upon for their grip on power. In the vast majority of cases reviewed for
this project, officers convicted of torture have received administrative punishments,
suspended sentences, or at most one-to-three years imprisonment.28
Encouraging bold investigative journalism risks further eroding regime control of
the official media (reporters, in turn, have often faced retaliation by local officials,
or even from the center, when policies changed). Moreover, the leadership cannot
control the reaction among broader domestic and foreign audiences. Interviews with
security experts indicate that government leaders have carefully debated whether
publicizing torture cases will strengthen its legitimacy, or if skeptical citizens and
foreign observers would simply dismiss the publicity as the regimes admission that
such abuses really are ubiquitous after all. As a result, publicity of torture cases
tends to come in waves, and at other times been discouraged or carefully managed.
Unprecedented domestic and official publicity has also, at times, been coupled with
stronger efforts to fight international or unofficial publicity. Even while the official
legal press investigates and exposes torture in unprecedented ways, police continue
to arrest citizens who attempt to form autonomous civil society anti-torture moni-
toring groups. In one case, even a retired Chinese policeman was jailed.29 Mean-
while, official spokespersons lambaste foreign reporters and human rights moni-
toring organizations for what they label as lies and interference in Chinas inter-
nal affairs.
Through its cautious experimentation with popular lawsuits against police and
procuratorial abuses over the past decade, the Party-state has tried to provide a
new vehicle of popular oversight that is more self-sustaining, though still structured
not to threaten the CCPs ultimate grip on power. Partial statistics and anecdotal
data indicate a growing minority of citizen plaintiffs have successfully sued for re-
dress or compensation. Still, with the limited evidence available, it is difficult to go
beyond the commonsense conclusion that plaintiffs are at least winning often
enough to encourage more and more suits. And even when they do not win a court
verdict, abused citizens can use these suits as a strategy to draw high level atten-
tion to their problems and force local officials to respond.
Some police officials have tried persuading their colleagues to embrace these new
litigation systems as a powerful impetus to fight torture, and warned them of the
problems that they will face if they fail to reform.30 Several departments have pro-
tested that the Administrative Litigation Law has been applied far too broadly, and
is obstructing interrogation and other criminal investigative work, which they insist
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51
is non-administrative work. Still, courts nationwide have consistently found a vari-
ety of pretexts to block the use of these new legal avenues by political dissidents
and religious activists, a fact which underscore the two-tiered nature of legal re-
forms and their strategic goal of splitting average citizens off from activists.
WEAK LEADERSHIP COMMITMENT, FRUSTRATION AMONG REFORMERS
Since the late 1990s, the leaderships ambivalent, sporadic commitment to fight-
ing torture, along with the limitations imposed by its fear that police will not be
able to solve crimes, or that the State will lose its political control, appear to be
causing growing frustration among anti-torture advocates. Anti-torture advocates
seem resigned to a very long, politically difficult battle over years and decades, re-
quiring repeated persuasion of political leaders, the retraining of current law en-
forcement officials, the recruitment of new, better ones, persistent efforts to get
procurators and judges to use their authority with greater independence. Many offi-
cials and scholarswho are very realistic that it might take China decades to really
root out tortureare daunted by powerful enduring attitudes favouring or excusing
torture at local levels, especially during anti-crime campaigns. It remains to be seen
whether this frustration might push reformers to yet another level of even bolder
proposals.
In a recently published speech before other criminal justice experts, Cui Min let
his frustration at the start-stop pace of change show through:
It is not just a few police officials at basic levels who have the confused belief
that tortured confession has many benefits a only does a little harmin fact,
this also represents the views of a few middle and high-ranking leaders. Since
the 1980s, when it comes to fighting tortured confession and other violations
of law and discipline, even though we have tried to grasp this work many times,
it has often been a case of a lot of thunder, but very little rainweve been
strict for a while, then were loose for a while. The focus and opinions of our
leaders change especially during strike hard periodseven to the point of find-
ing various methods to overlook and excuse torture by lower level police. These
past few years, torture problems havent just occurred in public security organs,
even some peoples procuraciesthe organ of legal oversighthave committed
torture while doing their own investigations; it has even reached the point that
the Discipline Inspection Committees of the ruling party are committing torture
during their two requireds 31all of which has caused the trend of torture to
get worse and worse. 32
In closing, Cui, in effect, threw up his hands in frustration and asked his col-
leagues rhetorically Do we really want to get rid of torture?
IMPLICATIONS FOR THE WEST
A key goal of this presentation has been to outline the proposals of analysts and
officials in, of all places, Chinas law enforcement system, who have been highly crit-
ical of Chinas torture problem, and are fighting to rein it in. For U.S. observers,
it is striking to note their advocacy of rules and institutions borrowed from Western
lawand occasionally U.S. law of the Warren Court-erato reform the incentives
for police and prosecutors to commit tortured confessions. We must always be cau-
tious in trying to attribute changes in something as complex as Chinese legal think-
ing to foreign intellectual influence, and we certainly do not want to overestimate
the degree of our own influence. But it is important for the West and the U.S. to
recognize the impact that exposure to Western legal notions appears to be having
on policy debates over how to fight torture, even within Chinese law enforcement
organs.
Until China undergoes a systemic transition to a system with the type of self-sus-
taining, self-generating oversight mechanisms needed to fundamentally root-out tor-
ture, it may well be that the best that can be hoped for is a change in the legal
incentives to commit torture, greater professionalization, increased punishment of
torturers, greater publicity, continued reforms with lawsuits, and related reforms
within the current authoritarian system. Of course, no one can forecast when or if
such a transition might occur.
This situation has always raised for the West an extremely complex and morally
difficult issue of how best to support such legal reform. There is no avoiding a brutal
31 The two requireds are a stipulation that Party anti-corruption investigators can place on
a suspected corrupt officialthat they be available for questioning by authorities at any time
they are required, and at any place they are requiredan often brutal interrogation regimen
effectly somewhat similar to house arrest.
32 Cui Min, Zai Lun Jiezhi Xingxun Bigong pg. 256.
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dilemmathat strengthening some aspects of professionalism in law enforcement is
an essential prerequisite to decreasing the incidence of torture in any country, not
just China. But while improving the ability of law enforcement officials to solve real,
non-political crime without resort to forced confession will very likely in the long
termcontribute to the rule of law and the Chinese peoples sense of their legal
rights, in the short term, it risks contributing to the institutional strength of the
current flawed legal system.
The institution of the Procuracy demonstrates this policy conundrum very well.
In recent years, the Supreme Peoples Procuratorate has actively and whole-
heartedly encouraged procurators to support the suppression of democracy and
rights advocates, and officially suspect religious groups. But there is also significant
evidence in this study that the SPP is one of the most important institutional
homes for those advocating strengthened legal procedures to fight torture, includ-
ing stronger evidence laws and exclusionary rules, strengthened oversight of police
interrogations, expanded prosecution of torturers, and greater public acknowledge-
ment of the scale of the problem. The evidence in this study raises the question of
whether expanded legal exchanges between carefully selected procuratorial scholars
and analysts and U.S. and other Western legal training programs might contribute
to some of these anti-torture policy recommendations.
Summary
Re-education through labor (RETL), one of the most prominent administrative
sanctions in China, is imposed on people whose act is not serious enough to warrant
* I am very grateful to Tom Carothers, Vice President for Studies, Carnegie Endowment for
International Peace, Professor Stanley Lubman, Lecturer in Law, School of Law, University of
California (Berkeley), and Professor Hualing Fu, Associate Professor, Faculty of Law, University
of Hong Kong, for their comments.
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criminal punishment but too serious to be subjected to lenient administrative sanc-
tions prescribed by the Security Administration Punishment Regulations (SAPR).
Yet, neither the Chinese Criminal Law nor judicial interpretations clearly define se-
rious and minor crimes.
RETL presents four legal and human rights problems:
Extensive Use. The expansion of the scope of RETL, as manifested in the prin-
cipal legislative documents governing the system, has drawn criticisms that these
documents are conflicting and that public security organs have turned RETL into
a crime control mechanism. The extensive use of the system has also led to wide-
spread human rights concerns.
Severe Punishment. Anyone who is subjected to RETL may be detained in a
labor camp for up to 4 years. This punishment is more severe than some criminal
punishments such as fines, surveillance, and criminal detention.
Inconsistent with Administrative Punishment Law. The Administrative Punish-
ment Law requires all administrative punishments that restrict personal freedom
to be prescribed by laws, which, under Chinese law, must be promulgated by the
National Peoples Congress and its Standing Committee. Although RETL is such
type of administrative punishment, it is only prescribed by three decisions either
made by the State Council or the Ministry of Public Security. The Standing Com-
mittee of the National Peoples Congresss approval of two of these decisions has not
transformed them into laws.
Lack of Effective Supervision. RETL is not a type of criminal punishment and
is thus not subject to any human rights safeguards embodied in the Criminal Law
and Criminal Procedure Law. Aggrieved parties facing RETL may resort to protec-
tions granted under the Administrative Litigation Law. Unfortunately, the courts
role in reviewing the legality of administrative sanctions such as RETL has been
limited by aggrieved parties fear of suing administrative organs and limited access
to lawyers as well as administrative organs interference with the process.
In light of these problems, many Chinese scholars call for abolishing RETL. Even
if it is not abolished, they suggest that it should be reformed. The maximum deten-
tion period should be reduced from four to one or 2 years. Courts, as opposed to pub-
lic security organs, should decide whether the punishment can be imposed and such
decisions can be challenged on appeal. Further, RETL should be incorporated into
criminal law.
These reform measures would not effectively resolve the human rights problems
presented by RETL. Although Chinese courts are undergoing a 5-year reform pro-
gram, extra-judicial interference will not disappear soon. The Criminal Procedure
Law only offers limited human rights protections and has not yet been fully imple-
mented since its revision in 1996. RETL should be abolished.
The Chinese government is planning to enact a law on RETL to improve the sys-
tem. It appears to have ruled out abolition. While the governments intent of not
abolishing RETL is disappointing, its determination of improving the system is wel-
come. The government must understand that any reforms that fall short of address-
ing the problems discussed here will negate its efforts in establishing a rule-of-law-
based criminal system.
I. Punishment of Minor Crimes
A. MINOR CRIMES
In Chinese criminal law, both criminality and punishment of a particular act de-
pend on whether the circumstances of the act are serious or minor. 1 The
Criminal Law, however, does not clearly define the term minor crimes even
though the distinction between the serious and the minor pervades the legisla-
tion.
Article 13 of the Criminal Law defines crimes as all acts that endanger the sov-
ereignty, territorial integrity and security of the state; split the state, subvert the
political power of the peoples democratic dictatorship and overthrow the socialist
system; undermine the social and economic orders; encroach upon property owned
by the State or collectively owned by the laboring masses; infringe upon citizens pri-
vately owned property; infringe upon citizens rights of the person, democratic
rights, and other rights; and other acts that endanger society and should, according
to law, be criminally punished. The provision, however, states that these acts are
not deemed crimes if the circumstances are clearly minor and the harm is not
great.
1 See Criminal Law of the Peoples Republic of China, promulgated on July 1, 1979, revised
on Mar. 14, 1997, Dec. 25 1999, Aug. 31, 2001, and Dec. 29, 2001 [hereinafter Criminal Law].
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Even if an act is deemed a crime, Article 37 provides that [w]here the cir-
cumstances of a persons crime are minor and do not require criminal punishment,
the person may be exempted from criminal sanctions, but he may, according to the
different circumstances of each case, be reprimanded or ordered to make a state-
ment of repentance or formal apology or make compensation for losses, or be sub-
jected to administrative sanctions by the competent department.
The word circumstances is not defined in the law but scholars have generally
agreed that it has a very broad meaning. It includes all the aspects of a specified
act that are thought relevant but are not expressly provided for in the written law
governing that act. 2 In particular, it can refer to the subjective blameworthiness
of a particular actor or external social and political effects of a crime. 3
A scholar points out that the circumstances need common knowledge to be un-
derstood 4 but acknowledges that it does not usually work well and, therefore, it
is necessary for the Supreme Peoples Court and the Supreme Peoples
Procuratorate to issue judicial interpretations to provide clarifications.5 The Su-
preme Peoples Court is authorized to interpret any problems of the concrete appli-
cation of laws or regulations in the course of litigation whereas the Supreme Peo-
ples Procuratorate has the power to interpret only questions involving the specific
application of laws and decrees in the procuratorial work of the procuratorates. 6
Numerous judicial interpretations have been issued to provide guidance as to
whether or not the circumstances of a particular crime are minor. Two examples are
illustrative. Article 294 of the Criminal Law states, inter alia, that
Whoever organizes, leads, or actively participates in an organization with
characteristics of a criminal syndicate, which carries out lawless and criminal
activities in an organized manner through violence, threat, or other means, with
the aim of playing the tyrant in a locality, committing all evil things, bullying
and harming the masses, and seriously undermining economic and social orders
shall be sentenced to fixed-term imprisonment of not less than 3 years nor more
than 10 years. Other participants shall be sentenced to fixed-term imprison-
ment of not more than 3 years, criminal detention, surveillance, or deprivation
of political rights.
The Supreme Peoples Courts Interpretation on Several Questions Concerning the
Concrete Application of Laws in Adjudicating Criminal Syndicate Cases7 clarifies
that participating in a criminal syndicate is not deemed a crime if the circumstances
are minor, such as the participant did not carry out any criminal activity or was
deceived or coerced to join the syndicate.8
Article 264 of the Criminal Law provides, inter alia, that [t]hose who steal rel-
atively large amounts of public or private money and property . . . shall be sen-
tenced to fixed-term imprisonment of not more than 3 years, criminal detention, or
surveillance, and may in addition or exclusively be subject to fines. The Supreme
Peoples Courts Interpretation on Several Questions Concerning the Concrete Appli-
cation of Laws in Adjudicating Theft Cases9 defines relatively large amounts as
amounts of 5002,000 yuan (US$60250) and above. The Higher Level Peoples
Court of each province, autonomous region, or municipality directly under the Cen-
tral Government adopts, after considering the economic development and social
order of its locality, an appropriate figure within this range as the standard to be
applied in the locality.10 Stealing of this amount of money and property is, however,
not deemed a crime if the circumstances are minor.11 The Interpretation does not
2 Note: Concepts of Law in the Chinese Anti-Crime Campaign, 98 HARV. L. REV. 1890, 1901
n.52 (1985). See also Fang Huicheng, [Do Not Punish Multiple Crimes as a Single Crime Com-
mitted Under Serious Circumstances], FAXUE [JURISPRUDENCE], No. 3, 1984, 24; Wen
Jing, [My Humble Opinion on the Circumstances of a Crime], FAXUE JIKAN [JURISPRU-
DENCE QUARTERLY], No. 1, 1984, 44.
3 Id.
4 Shizhou Wang, The Judicial Explanation In Chinese Criminal Law, 43 AM. J. COMP. L. 569,
575 (1995).
5 Id.
6 Resolution of the National Peoples Congress Standing Committee on Strengthening Legal
Interpretation Work, adopted on June 10, 1981.
7 Supreme Peoples Courts Interpretation on Several Questions Concerning the Concrete Ap-
plication of Laws in Adjudicating Criminal Syndicate Cases, adopted on Dec. 4, 2000 and effec-
tive on Dec. 10, 2000.
8 Id. art. 3(2).
9 Supreme Peoples Courts Interpretation on Several Questions Concerning the Concrete Ap-
plication of Laws in Adjudicating Theft Cases, adopted on Nov. 4, 1997 and effective on Mar.
17, 1998.
10 Id. art. 3.
11 Id. art. 6(2).
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provide an exhaustive list of minor circumstances but refers to several situations
as examples: the stealing was committed by a person who has reached the age of
16 but not the age of 18, the stolen property and money have been completely re-
turned, the person surrendered himself or herself to the police, or the person was
coerced to steal and shared none or a relatively small amount of the stolen prop-
erty.12
Although judicial interpretations help clarify the Criminal Law and are thus
hailed as an indispensable source for understanding Chinese law,13 the broad and
indeterminate language found in these interpretations, as illustrated in the above
two examples, create wide scope of discretion in interpretation.14 Each of the cited
interpretations defines minor as minor, and the resulting tautology fails to pro-
vide genuine clarification and guidance to the courts and administrative agencies.
B. Punishment
When the circumstances of a persons act are so minor that the act is not deemed
a crime, or when the circumstances of a persons crime are so minor that the crime
does not require criminal punishment, the person may still be subjected to adminis-
trative sanctions. The re-education through labor, which is to be discussed in Part
II, and those prescribed by the Security Administration Punishment Regulations
(SAPR)15 are the most prominent administrative sanctions.
Article 2 of the SAPR provides that [w]hoever disturbs social order, endangers
public safety, infringes upon a citizens rights of the person or encroaches upon pub-
lic or private property shall be punished in accordance with the SAPR if such an
act is not serious enough for criminal punishment and security administration
punishment should be imposed. 16 Penalties under the regulations include a warn-
ing, a maximum fine of 5,000 yuan (US$625), and administrative detention of not
more than 15 days.17 The public security organs have exclusive responsibility for
imposing these penalties.
Re-education through labor (RETL) is imposed on people whose act is not seri-
ous enough to warrant criminal punishment but too serious to be dealt with under
the SAPR. RETL is mainly governed by three legislative documents. According to
the 1957 Decision of the State Council Regarding the Question of Re-education
Through Labor (1957 Decision),18 the purposes of establishing RETL are to re-
form into self-supporting new persons those persons who are able to work but insist
on leading an idle life, violate law and discipline, or do not engage in honest pur-
suits and to further maintain public order, thus facilitating socialist construc-
tion. 19 The sanctions should be imposed on the following four categories of people:
(1) those who do not engage in honest pursuits, involve themselves in
hooliganism, commit larceny, fraud or other acts for which they are not criminally
12 Id.
13 See Wang, supra note 4, at 569. Wang writes that judicial interpretations play an important
role in the Chinese criminal justice system because they have six functions: (1) indicating how
to correctly understand the meaning of the law; (2) explaining the issues of the law; (3) indi-
cating the concrete standard of sentencing within the statutory punishments; (4) clarifying the
guilty line and line for giving a heavier punishment when the law requires serious cir-
cumstances or especially serious circumstances; (5) clarifying the limitation of time for a par-
ticular law; and (6) explaining how to implement laws. Id. at 57277.
14 For detailed discussion of Chinese legislative drafting, see Perry Keller, Legislation in the
Peoples Republic of China, 23 U. BRIT. COLUM. L. REV. 653 (1989); PETER HOWARD
CORNE, FOREIGN INVESTMENT IN CHINA: THE ADMINISTRATIVE LEGAL SYSTEM, 95
104 (1997); Claudia Ross & Lester Ross, Language and Law: Sources of Systemic Vagueness and
Ambiguous Authority in Chinese Statutory Language, in THE LIMITS OF THE RULE OF LAW
221 (KAREN G. TURNER, JAMES V. FEINERMAN, AND R. KENT GUY, eds. 2000).
15 Security Administration Punishment Regulations, adopted on Sept. 5, 1986, effective on
Jan. 1, 1987, revised on May 12, 1994 [hereinafter SAPR].
16 Articles 1932 of the SAPR specify the circumstances under which the SAPR is violated and
the corresponding punishments.
17 SAPR, supra note 15, art. 6.
18 Decision of the State Council Regarding the Question of Re-education Through Labor, ap-
proved by the Standing Committee of the National Peoples Congress on Aug. 1, 1957, promul-
gated and effective on Aug. 3, 1957 [hereinafter 1957 Decision].
19 Id. preamble.
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liable, or violate public security rules and refuse to mend their ways despite re-
peated admonition; 20
(2) counterrevolutionaries and anti-socialist reactionaries who commit minor
crimes and are not criminally liable and who have been given sanctions of expulsion
by government organs, organizations, enterprises or schools, and as a result have
difficulty in making a living; 21
(3) employees of government organs, organizations, enterprises and schools who
are able-bodied, but have refused to work for a long period, violated discipline or
jeopardized public order, and have been given sanctions of expulsion, and as a result
have difficulty in making a living; 22 or
(4) those who refuse to accept the work assigned to them or the arrangement
made for their employment or who decline to take part in manual labor and produc-
tion despite persuasion, keep behaving disruptively on purpose, obstruct public offi-
cials from performing their duties and refuse to mend their ways despite repeated
admonition. 23
Various bodies may apply for imposition of RETL on anyone who falls into one
of the above four categories. These include civil affairs and public security depart-
ments or the government organ, organization, enterprise, school or other units to
which the person belongs; or his or her parents or guardians. 24 The applications
have to be approved by the peoples committees of provinces, autonomous regions,
and municipalities directly under the Central Government or by organs authorized
by these peoples committees. 25 The 1957 Decision stipulates that agencies in
charge of RETL will be established at the level of provinces, autonomous regions,
municipalities directly under the Central Government or established with the ap-
proval of the peoples committees of provinces, autonomous regions, and municipali-
ties directly under the Central Government. 26 It also states that the work of these
agencies will be jointly directed and managed by the departments of civil affairs and
public security.27
In 1979, the State Council issued the Supplementary Decision Of The State Coun-
cil For Re-education Through Labor (1979 Decision) to provide more details about
RETL.28 Under the 1957 Decision, a person can be subject to RETL for indefinite
periods but the 1979 Decision confines these periods to one to 3 years, with 1-year
extension whenever it is necessary. 29 The 1979 Decision clarifies that RETL Ad-
ministrative Committees shall be established by the peoples governments of the
provinces, autonomous regions, and municipalities directly under the Central Gov-
ernment, and of large and medium-sized cities. 30 These committees shall be com-
posed of persons who are in charge of civil affairs, public security and labor depart-
ments and these persons shall be responsible for directing and managing the work
of RETL.31 Further, the 1979 Decision states that RETL can only be imposed on
those people in large and medium-sized cities who need to be re-educated through
labor. 32 The RETL Administrative Committees of provinces, autonomous regions,
and municipalities directly under the Central Government, and of large and me-
dium-sized cities, are responsible for examining and approving those who need such
re-education.33 In other words, RETL is not applicable to the rural populace.
In 1982, the Ministry of Public Security passed, with the approval of the State
Council, the Trial Methods for the Implementation of Re-education Through Labor
(1982 Trial Methods).34 Under this document, RETL can be imposed not only on
the four categories of persons listed under the 1957 Decision, but also on anyone
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57
who joined others to commit a crime such as murder, robbery, rape, and arson or
who abetted others to commit a crime and the circumstances surrounding these
crimes are not serious enough for criminal punishments.35 Moreover, RETL is also
applicable to the rural populace if the person committed crimes in cities, along rail-
ways, and in large-scale factories and mines. 36
B. LEGAL AND HUMAN RIGHTS PROBLEMS OF RE-EDUCATION THROUGH LABOR
1. Extensive use
The expansion of the scope of RETL, as shown in the 1957 Decision, the 1979 De-
cision, and the 1982 Trial Methods, has drawn criticisms from Chinese legal schol-
ars that these documents are conflicting37 and that RETL has been turned by the
public security organs into a crime control mechanism, 38 which is different from
the legislative intent stipulated in the 1957 Decision.
Numerous reports about the extensive use of the system have also led to wide-
spread human rights concerns. RETL is imposed by RETL Administrative Commit-
tees that are dominated by public security organs,39 and these organs have report-
edly abused the system to take actions against suspected offenders so as to avoid
the procedural requirements or supervisory mechanisms presented under the Crimi-
nal Procedure Law.40 In particular, it has been reported that public security organs
have imposed RETL on offenders against whom they lack sufficient evidence to sup-
port a charge even though the circumstances of the crime committed are not
minor.41
Official sources reveal that about 3.5 million people have been re-educated since
its establishment in the 1950s.42 At present, 300,000 people are being held in the
countrys nearly 300 RETL camps,43 at least 1000 of whom are there because they
(Chenguang Wang and Xianchu Zhang eds., 1997). See also Chen Xingliang, supra note 37, at
694.
39 See Tao Jigang, [Some Thoughts on Laws Relating to Re-education Through Labor],
revised on Mar. 17, 1996 [hereinafter Criminal Procedure Law]. See LAWYERS COMMITTEE
FOR HUMAN RIGHTS, CRIMINAL JUSTICE WITH CHINESE CHARACTERISTICS: CHI-
NAS CRIMINAL PROCESS AND VIOLATIONS OF HUMAN RIGHTS, 6979 (1993); Amnesty
International, Open Letter To The President Of The Peoples Republic Of China, M2
PRESSWIRE, Sept. 28, 1999, available in LEXIS, News Library, News Group File.
41 See Fu, supra note 38, at 134; Chen Xingliang, supra note 39, at 52.
42 See ChinaGovernment Re-education System on Legal Basis, CHINA DAILY, Nov. 2, 1998;
Beijing to Introduce Re-education Through Labor Law This Year, ZHONGGUO TONGXUN SHE
NEWS AGENCY, BBC SUMMARY OF WORLD BROADCASTS, Feb. 19, 2001, available in
LEXIS, News Library, News Group File.
43 See Minister Says 1.7 Million Held In Prisons, Labour Camps, XINHUA NEWS AGENCY,
BBC SUMMARY OF WORLD BROADCASTS, May 22, 2000, available in LEXIS, News Library,
News Group File; John Leicester, China Gives Reporters Glimpse of Labor Camp Dubbed Living
Hell by Critics, THE ASSOCIATED PRESS, May 23, 2001, available in LEXIS, News Library,
News Group File.
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are Falun Gong followers.44 Torture45 and maltreatment such as banning family vis-
its and censoring inmates personal correspondence46 are alleged to be commonly
practiced in RETL camps. Of all the current inmates, a third are punished by RETL
because they were drug addicts, prostitutes, brothel visitors; another third are of-
fenders of minor crimes such as larceny, fraud, and assault. The rest comprises of
other types of inmates.47
2. Severe punishment
Although couched in terms of leniency, the 1979 Decision and the 1982 Trial
Methods allow a person to be detained in a labor camp for up to 4 years. This pun-
ishment is far more severe than some criminal punishments, which include five
types of principal punishments (zhuxing)48 and three types of supplementary
punishments (fujia xing).49 The five types of principal punishments are:
(1) Surveillance (guanzhi) (from 3 months to 2 years)50
(2) Criminal detention (juyi) (from 1 month to 6 months)51
(3) Fixed-term imprisonment (from 6 months to 15 years and up to 20 years when
the death penalty is commuted to fixed-term imprisonment or in cases of combined
punishment for more than one crime)52
(4) Life imprisonment
(5) Death penalty
Supplementary punishments, regardless of the opposite meaning conveyed by its
name, may be imposed independently.53 They include:
(1) Fines (the amount of the fine imposed depends on the circumstances of the
crime)54
(2) Deprivation of political rights55
(3) Confiscation of property Critics argue that because RETL is more severe than
criminal punishments such as fines, surveillance, and criminal detention, applica-
tion of the sanction violates the rationale behind RETL: the system should be ap-
plied to cases whose level of severity does not merit any criminal punishment.56
44 China has not disclosed the exact number of Falun Gong followers held in re-education
through labor camps. But it confirmed in January 2001 that at least 470 followers were held
at the Masanjia Education-Through-Labour Education Institution in Liaoning Province and the
official media reported in August 2001 that th[is] camp has also succeeded in re-educating
more than 90 per cent of the 1,000 female Falun Gong members housed there. See Forty-Seven
Former Female Falun Gong Followers Released After Reform, XINHUA NEWS AGENCY, BBC
SUMMARY OF WORLD BROADCASTS, Jan. 27, 2001, available in LEXIS, News Library,
News Group File; China Rejects Report of Hunger Strike by Jailed Falun Gong Members,
AGENCE FRANCE PRESSE, Aug. 30, 2001, available in LEXIS, News Library, News Group
File. The Hong Kong-based Information Center for Human Rights and Democracy estimated
that about 10,000 Falun Gong followers have been sent to these camps since the Falun Gong
movement was banned in July 1999. See Nearly 500 Falun Gong Were Held At Just One Labour
Camp: China, AGENCE FRANCE PRESSE, Jan. 18, 2001, available in LEXIS, News Library,
News Group File.
45 See Amnesty International: ChinaTorture In China Under The Spotlight At The United
Nations, M2 PRESSWIRE, May 5, 2000, available in LEXIS, News Library, News Group File;
Released Chinese Dissident Speaks of Horrors of Labor Camp Life, AGENCE FRANCE
PRESSE, Feb. 15, 2002, available in LEXIS, News Library, News Group File.
46 See Fong Tak-Ho, Dissident Threatens Legal Action, HONG KONG STANDARD, July 10,
elect and the right to be elected; (2) the right to freedom of speech, of the press, of assembly,
of association, of procession, and of demonstration; (3) the right to hold a position in state or-
gans; and (4) the right to hold a leading position in a state-owned company, enterprise, or insti-
tution or peoples organization. Id. art. 54.
56 See Chen Zexian, [Re-education Through Labor System and Educational Reform of Pris-
oners in China], in [HUMAN RIGHTS AND ADMINISTRATION OF JUSTICE] 30, 334 (Liu,
Li and Kjaerum. eds., 1999); Chen Ruihua, supra note 37, at 669; Chen Xingliang, supra note
37, at 694.
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59
3. Inconsistent with administrative punishment law
The RETL system has also been challenged as inconsistent with the Administra-
tive Punishment Law.57 The statute specifically requires all administrative punish-
ments that restrict personal freedom to be prescribed by laws. 58 Administrative
regulations and rules can only prescribe other punishments such as warning, fines,
confiscation of illegally gained income and property, and provisional suspension or
revocation of permits or licenses.59 According to the hierarchy of Chinese legislative
authorities, only the National Peoples Congress and its Standing Committee can
promulgate laws. 60 RETL, which is a type of administrative punishment that re-
stricts personal freedom,61 is prescribed not by a law but by decisions made by
the State Council or the Ministry of Public Security, and the legality of this system
is therefore questionable.62
Those who disagree with the above view may argue that the Standing Committee
of the National Peoples Congresss approval of the 1957 and 1979 Decisions has ef-
fectively transformed them into laws. 63 This view is debatable. But even if it is
correct, the same argument cannot be applied to the 1982 Trial Methods because
the Standing Committee of the National Peoples Congress has never approved the
document. Among the three documents, the 1982 Trial Methods has the most exten-
sive and controversial coverage.
4. Lack of effective supervision
As an administrative, rather than criminal, sanction, RETL is not subject to any
human rights safeguards, however limited they are, contained in the Criminal Law
and Criminal Procedure Law.
The Chinese Criminal Law was promulgated in 1979 and amended four times
from 1997 to 2001. The 1997 amendment was particularly remarkable. It abolished
the provision on analogy64 and adopted certain fundamental principles of justice
such as equality before the law65 and proportionality (zuixing xiang shiying
yuanze).66 But it did not adopt the principle of double jeopardy as far as crimes com-
mitted outside China are concerned.67
The revision of the Criminal Procedure Law in 1996 brought the legislation closer
to international human rights standards by adopting the presumption of innocence,
expanding the right to counsel, and increasing the role of the courts so as to elimi-
nate the prior practice of pre-trial determination of guilt. Despite these improve-
ments, the revised Criminal Procedure Law still has various deficiencies.68 For ex-
ample, it allows long period of pre-arrest detention. The public security organs can
detain for a period of 30 days those strongly suspected of wandering around com-
57 Administrative Punishment Law of the Peoples Republic of China, promulgated on Mar. 17,
1996 and effective on Oct. 1, 1996.
58 Id. art. 9
59 Id. arts. 8, 10 and 11.
60 See XINGZHENG FAXUE JIAOCHENG [TEXT OF ADMINISTRATIVE JURISPRU-
DENCE] 205 (Ying Songnian, ed., 1988).
61 This point was in dispute in the past. See Chen Xingliang, supra note 39; Chen Ruihua,
supra note 37, at 669; Jiang Jinfang, [Legal Developments of Re-education Through Labor Sys-
tem and Practical Problems], ZHONGWAI FAXUE [PEKING UNIVERSITY LAW JOURNAL]
Vol. 13. No. 6(2001) 674, 682.
62 See Shen Fujun, supra note 37, at 19; Chen Zexian, supra note 56, at 3435; JIANFU
CHEN, CHINESE LAW: TOWARDS AN UNDERSTANDING OF CHINESE LAW, ITS NA-
TURE, AND DEVELOPMENT 193 (1999).
63 See supra notes 18 and 28. Chen Xingliang argues that they are not laws; they are pre-
laws (zhun falu), at the very most, see Chen Xingliang, supra note 37, at 689, 692.
64 Article 79 of the 1979 Criminal Law provided that [a] person who commits crimes not ex-
plicitly defined in the Specific Provisions of this Law may be convicted and sentenced, after ob-
taining the approval of the Supreme Peoples Court, according to the most similar article in this
Law. After the 1997 amendment, the Criminal Law provides that [a]ny act deemed by explicit
stipulations of law as a crime shall be convicted and given punishment by law and any act that
no explicit stipulations of law deem a crime shall not be convicted or given punishment. Crimi-
nal Law, supra note 1, art. 3.
65 Anyone committing crimes shall be treated equally in applying the law. No one shall have
any privileges outside the law. Id. art. 4.
66 The punishment shall be proportional to the criminal acts committed by the offenders and
the criminal responsibilities that the offenders shall bear. Id. art. 5.
67 For detailed discussion of the amendment to the Criminal Law, see LAWYERS COM-
MITTEE FOR HUMAN RIGHTS, WRONGS AND RIGHTS: A HUMAN RIGHTS ANALYSIS OF
CHINAS REVISED CRIMINAL LAW (1998); JIANFU CHEN, supra note 62, at 174183.
68 For detailed discussion of the amendment to the Criminal Procedure Law, see Fu, supra
note 38; LAWYERS COMMITTEE FOR HUMAN RIGHTS, OPENING TO REFORM?: AN
ANALYSIS OF CHINAS REVISED CRIMINAL PROCEDURE LAW (1996); JIANFU CHEN,
supra note 62, at 20016; Daphne Huang, The Right to a Fair Trial in China, 7 PAC. RIM. L.
& POLY 171 (1998).
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60
mitting crimes, of committing multiple crimes, or of forming gangs to commit
crimes. 69 The requirement for the public security organs to inform detainees fami-
lies of the reasons for detention and the place of custody within 24 hours after the
detention may be waived if this may hinder the investigation or there is no way
of notifying them. 70
As these limited human rights protections are beyond the reach of those who are
punished by RETL, aggrieved parties may only resort to protections granted under
the Administrative Litigation Law.71 The statute stipulates that anyone who be-
lieves that his or her legitimate rights and interests have been infringed by admin-
istrative acts such as administrative sanctions may bring lawsuits to courts.72
Should the court find the challenged administrative act illegal, it may revoke
(chexiao) the act.73
Based on documentary sources and empirical research, I have noticed some im-
provements in administrative litigation such as growing respect for procedural re-
quirements. However, the existing problems as discussed below appear to have lim-
ited the courts role in reviewing the legality of administrative sanctions such as
RETL.74
a. Fear.According to interviewees, aggrieved parties dare not sue administrative
organs, especially public security organs, which have wielded extensive power over
the populace for decades in China. They fear reprisals resulted from direct con-
frontation with these organs. Nevertheless, official statistics show that during the
years from 1991 to 2000, a significant portion (ranging from 15 to 30 per cent) of
administrative cases accepted by first-instance courts were public security
(gongan) cases, which cover social order (zhian) cases, RETL (laojiao) cases, and
others (qita).75 (See Table One). If this fear exists, why do public security cases
account for such significant portion?
1991 25,667 78
Interviewees explained that the relatively high percentage of public security ad-
ministrative cases simply reflected public security organs possession of enormous
power affecting a wide range of citizens daily activities. Regardless of their fear,
some aggrieved parties finally resorted to administrative litigation because they con-
sidered their grievances too grave to endure.
Some other evidence corroborates this explanation. According to a survey con-
ducted in 1992, 51 of 90 plaintiffs interviewed said that they filed suits under the
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61
Administrative Litigation Law because they felt this was their last resort.79 In 1993,
an abstract painter reportedly sued Beijings Haidian District Police after three offi-
cers beat him for arguing with a bus conductor. The painter won his case. However,
the police arrested him two weeks later and charged him with a trumped-up bicycle
theft. He was then sent, without trial, to 2 years in a labor camp. When interviewed
in 1997, the painter recalled, My vision was too optimistic. From now on, I will
express myself through my art. 80 In fact, police misconduct was considered a
grave problem by thenSupreme Peoples Court president Ren Jianxin in Decem-
ber 1996 and he criticized some law-enforcement officials [who] have taken advan-
tage of legal loop-holes, intentionally misinterpreted the law, distorted evidence and
broken the law they enforce. 81
b. Limited Access to Lawyers.The fee for retaining a lawyer varies in accordance
with individual lawyers experience and competence. On average, the fee can
amount to at least 2,0003,000 yuan (US$250$375) for a case tried by a basic level
court and 5,000 yuan (US$625) for one by an intermediate level court.82 The aver-
age monthly income of an ordinary worker is below 1,000 yuan (US$125).83
Free legal service is available but its effectiveness in administrative litigation is
doubtful.84 Legal aid rules generally require eligible applicants monthly income to
be less than a fixed amount ranging from 200400 yuan (US$25$50).85 Few people
except those living below the poverty line or those who are unemployed can meet
this requirement.86 Besides, priorities of legal aid are given to criminal defendants
facing the death penalty as well as the blind, deaf, dumb, aged, and minors to assist
their claim for compensation in personal injury cases.87 Administrative cases do not
seem to have attracted legal aid providers attention. From its opening in 1995 to
January 1999, the Guangzhou Legal Aid Center has only handled two administra-
tive cases.88 By contrast, within the year of 1998, 700 criminal and economic cases
were handled.89 Legal aid centers in the entire Chongqing handled about 2,400
criminal cases and 3,500 civil cases in 1999. Only about ten cases were administra-
tive cases.90
Even if aggrieved parties can afford to retain lawyers, they may encounter dif-
ficulties because lawyers are not enthusiastic about handling administrative cases.
Unlike economic and civil cases, the amount in dispute in an administrative case
is low and thus lawyers cannot charge high fees. Moreover, most lawyers are reluc-
tant to stand up to the government, which has power to decide whether or not a
lawyers license should be renewed.91
c. Interference.The majority of interviewees identified interference by adminis-
trative organs and the Chinese Communist Party as the greatest difficulty encoun-
tered in administrative litigation. Such interference may occur during the entire
course of handling an administrative case, but is especially common before the case
is accepted. At subsequent stages, judges may be pressured to uphold the adminis-
trative act and aggrieved parties and/or courts pressured to have the case with-
drawn.
In some administrative cases where public security organs are defendants, the or-
gans have reportedly manipulated the blurred distinction between their dual roles
of conducting criminal investigations and imposing administrative sanctions. When
these organs intend to bypass the human rights protections provided under the
criminal justice system, they often claim that whatever sanctions imposed on sus-
pects are administrative sanctions. When these sanctions are challenged in court
through administrative litigation, the public security organs often influence judges
79 FAZHI DE LIXIANG YU XIANSHI [THE IDEAL AND REALITY OF THE RULE OF LAW]
322 (Gong Xiangrui et al. eds., 1993).
80 George Wehrfritz and Michael Laris, Rules Are the Law, NEWSWEEK (ATLANTIC EDI-
TION), Sept. 29, 1997, available in LEXIS, News Library, News Group File.
81 Id.
82 Interviews in Guangdong, Dec. 1998-Jan. 1999 and Chongqing, Dec. 1999-Jan. 2000.
83 Id.
84 For discussion of legal aid practices in China, see generally David Lee, Legal Reform in
China: A Role for Nongovernmental Organizations, 25 YALE J. INTL L. 363 (2000); Benjamin
L. Liebman, Legal Aid and Public Interest Law in China, 34 TEX. INTL L. J. 211 (1999).
85 Guangzhou Legal Aid Center adopted 340380 yuan as the standard. See Pamphlet issued
by Guangzhou Legal Aid Center, Jan. 1999 (on file with author).
86 Interview with Director, Guangzhou Legal Aid Center, Jan. 1999; Interview with Directors,
Chongqing Legal Aid Center, Jan. 2000.
87 See Backgrounder: Qualifications for Chinese Citizens to Receive Legal Aid, XINHUA GEN-
ERAL NEWS SERVICE, JUNE 16, 2000, available in LEXIS, News Library, News Group File.
88 Interview with Director, Legal Aid Center in Guangzhou, Jan. 1999.
89 Id.
90 Interview with Directors, Legal Aid Center in Chongqing, Jan. 2000.
91 Interviews in Guangdong, Dec. 1998-Jan. 1999 and Chongqing, Dec. 1999-Jan. 2000.
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62
to reject the cases on the ground that the court lacks jurisdiction because the sanc-
tions are not administrative acts but acts of criminal investigation.92
Chinese judges are susceptible to pressure exerted by administrative organs and
the Chinese Communist Party because courts financial arrangements including
courts budgets, judges salaries and welfare benefits as well as appointment and
dismissal of judges are determined by peoples governments at corresponding levels,
which are ultimately controlled by the local party committees.93
III. The Future of RETL and Concluding Remarks
In light of the legal and human rights problems of RETL, many scholars call for
abolition or fundamental reform of RETL.94 Some of those who support abolition of
RETL suggest amending the SAPR to increase the maximum period of administra-
tive detention from 15 days to a month.95 Offenders of minor crimes may be de-
tained for up to a month under the SAPR whereas other offenders may be punished
under the Criminal Law, which provides that criminal detention should last from
1 month to 6 months.96 As there is no gap between these two types of detention,
there is no need to have RETL.97
If the RETL is not abolished, the system should be fundamentally reformed. The
maximum detention period should be reduced from 4 years to one98 or 2 years.99
Imposition of these punishments should not be decided by public security organs but
by courts whose decisions are subject to appeal.100 If possible, the system should be
incorporated into the Criminal Law by establishing a new type of punishment called
police orders or public safety orders which are similar to community-based or-
ders in western countries.101
The reform measures stated in the preceding paragraph, although they would al-
leviate some of the problems in the current system, would not effectively resolve the
human rights problems presented by RETL. Designating courts as the authorities
to decide whether or not RETL should be imposed will be an effective reform meas-
ure if and only if the courts can make these decisions independently. Although the
Chinese courts are undergoing a 5-year reform program, the problem of extra-judi-
cial interference will not be resolved in the near future, because the solution is nec-
essarily linked to both political reform and changes in Chinese legal culture.102
The revisions of the Criminal Law and the Criminal Procedure Law marked the
continued maturing of Chinese legality to reflect changed social and economic condi-
tions. Yet the current Criminal Procedure Law only offers limited human rights pro-
tections, and it remains unknown when the legislation will be completely brought
in line with international norms. The recognition of criminal suspects right to keep
silence, expressed in a regulation issued in Liaoning Province, gives hope of a trend
toward greater incorporation of international human rights norms into the Chinese
criminal justice system.103 Integration of RETL into the Criminal Law would at
92 Dong Hao, [Some Thoughts about Reforming Multiple Responsibilities System of Our Coun-
trys Judicial Organs, ZHONGGUO FAXUE CHINAS LEGAL STUDIES], No. 4, 1997, 24, at
26.
93 For discussion of constraints on judicial autonomy, see Stanley Lubman, Bird in a Cage:
Chinese Law Reform After Twenty Years, 20 J. INTL. L. BUS. 383, 39498 (2000); He Weifang,
[The Realization of Social Justice Through Judicature: A Look at the Current Situation of Chi-
nese Judges], in [TOWARD A TIME OF RIGHTS: A PERSPECTIVE OF THE CIVIL RIGHTS
DEVELOPMENT IN CHINA] 209 (Xia Yong ed., 1995).
94 See e.g. Shen Fujun, supra note 37; Tao Jigang, supra note 39, at 12; Ma Kechang, supra
note 39, at 78; Chen Zexian, supra note 56; Chen Xingliang, [Dual Tasks for Criminal Revision:
Change of Value and Adjustment of Structure], ZHONGWAI FAXUE [PEKING UNIVERSITY
LAW JOURNAL], No.1, 1997, 55, at 5660; Chen Guangzhong and Zhang Jianwei, [The UNs
International Covenant on Civil and Political Rights and Our Countrys Criminal Litigation],
ZHONGGUO FAXUE [CHINAS LEGAL STUDIES], No. 6, 1998, 98, at 108; Chen Ruihua,
supra note 37, at 66973.
95 See supra Part I.B.
96 Criminal Law, supra note 1, art. 42.
97 See Shen Fujun, supra note 37, at 19; Chen Zexian, supra note 56, at 36; Chen and Zhang,
supra note 94, at 108. See also Chen Xingliang, supra note 37, at 700.
98 See Chen and Zhang, supra note 94, at 108.
99 See Chen Zexian, supra note 56, at 35.
100 See Chen and Zhang, supra note 94, at 108
101 See Ma Kechang, supra note 39, at 78; JIANFU CHEN, supra note 62, at 193; Chen
Xingliang, supra note 94, at 5660; and Chen and Zhang, supra note 94, at 108.
102 The Supreme Peoples Court launched a Five-Year Court Reform Plan in October 1999. See
Chinas Supreme Court Plans Greater Autonomy For Judges, CHINAONLINE, Oct. 26, 1999,
available in LEXIS, News Library, News Group File.
103 See China: New Regulation Sees Introduction of Criminal Suspects Right to Silence,
XINHUA NEWS AGENCY, BBC WORLDWIDE MONITORING, Nov. 22, 2000, available in
LEXIS, News Library, News Group File.
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63
least have the advantage of subjecting RETL to human rights protections already
provided in the Criminal Procedure Law.
The incorporation of RETL into the Criminal Law ought not obscure the problems
that it would continue to present, especially in light of the need to implement even
the existing safeguards against official arbitrariness that are contained in the
Criminal Procedure Law. After extensive investigations in six selected provinces,
autonomous regions and cities, namely, Tianjin, Inner Mongolia, Heilongjiang,
Zhejiang, Shaanxi and Hubei, the National Peoples Congress Standing Committee
concluded that the Criminal Procedure Law has not been fully implemented since
its revision in 1996. Over-extended detention of criminal suspects and forced confes-
sion are still salient problems in many parts of the country. Judges,
procuratorates, and public security organs restrict defense lawyers activities by ob-
structing the lawyers to meet with their clients and to access court files relating
to their cases. The National Peoples Congress Standing Committee attributed this
unsatisfactory implementation to law enforcers erroneous understanding of the
law. These enforcers regard the law as too advanced for China.104 Against this
backdrop, incorporating RETL into the Criminal Law would only subject the system
to minimal human rights protections that are only available at the discretion of law
enforcers. RETL is such a major anomaly in a legal system that is supposed to be
ruled by law, that, the mechanism should be abolished.
I expressed the above views at the Seminar on Punishment of Minor Crimes,
which was jointly organized by the Chinese government and the United Nations Of-
fice of the High Commissioner for Human Rights in February 2001. Since then, the
Chinese government has announced its plan of drafting a law on RETL to improve
the name, targets, and implementation mechanisms of RETL.105 But it appears to
have ruled out abolition. Wang Yunsheng, Director of the Ministry of Justices Bu-
reau of Re-education Through Labor, explained, For such a populous Nation as
China, the [RETL], which aims at stopping those on the verge of committing serious
crimes, is an effective one for reducing crime. 106
While the Chinese governments intent of not abolishing the RETL system is dis-
appointing, its determination of improving the system is welcome. But the govern-
ment must understand that any reforms that fall short of addressing the problems
discussed here will negate its efforts in establishing a rule-of-law-based criminal
system.
I thank you again for inviting me to speak today and I look forward to answering
any questions you may have.
104 See Official Admits Detention, Forced Confessions A Major Problem, XINHUA NEWS
AGENCY, BBC SUMMARY OF WORLD BROADCASTS, Dec. 30, 2000, available in LEXIS,
News Library, News Group File.
105 See Speed Urged for Judicial System Laws, CHINA DAILY, Dec. 24, 2001; Beijing to Intro-
duce Re-education Through Labor Law This Year, supra note 42.
106 See China Reviews Re-education Through Labor System, DEUTSCHE PRESSE-
AGENTUR, Feb. 5, 2001, available in LEXIS, News Library, News Group File.
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